Protected Human Rights

All Canadian jurisdictions ban adverse treatment in an employment context based on race, religion, gender, age, marital or family status and disability.  The precise definition of the particularly protected right may vary from statute to statute, but the substantive effect is the same.

All such statutes also offer protection on account of pregnancy, usually as an interpretation of gender. Some specifically define the protected ground as including the perception or possibility of pregnancy and pregnancy related disabilities. Such additional descriptions are included, in any event, in the judicial interpretation of the protected right even where the legislation does not define the right in this manner.

The interpretation of all human rights protections has been read to capture the perception that the affected person may be included within such a protected ground, yet is not. That is, a company which terminated a person because it believed the person was homosexual, would be in violation of the human rights code, even if this perception was mistaken.

There are certain nuances in individual legislations.

The Ontario Code also offers as a protected right a record of offences which is a defined term which includes a Criminal Code conviction for which a pardon has been given and any provincial offence. Ontario also includes citizenship as a discriminatory ground.

At one time “age” in Ontario was defined to allow adverse treatment due to the age in question under the age of 18 or over the age of 65. This was amended in 2006. The term is now defined to prevent age discrimination for those over the age of 18. This is the case now for all jurisdictions.

British Columbia’s legislation is similar but not identical. The rights protected under the B.C. Code also include political belief, and a criminal conviction that is unrelated to the employment or to the intended employment of that person.

The Alberta Human Rights Code adds as a protected right “source of income” which is intended to refer to applicants for employment who are on social assistance or similar incomes such as a disability benefit. The intent is to protect those persons in receipt of income sums which attract a social stigma.

Saskatchewan’s Code similarly offers its protections to those persons in receipt of public assistance.

Manitoba’s statute is similar in that it offers protection to those persons adversely effected by employment decisions relating to source of income, political belief, association or activity, and uniquely “social disadvantage”.

The Manitoba Human Rights Commission issued a policy manual interpreting this term to be diminished social standing based on homelessness, low level of education, chronic low income or chronic unemployment which has led to a negative stereotype.

Quebec’s Charter of Human Rights and Freedoms defines the protected rights in employment to include political convictions, language, social condition, a handicap or the use of any means to palliate a handicap. Quebec law also forbids adverse treatment in employment due to a criminal conviction if a pardon has been obtained or the offence is not connected with the employment in question.

New Brunswick’s legislation also extends its mandate to include social condition or political belief or activity.

The statute of Nova Scotia forbids discrimination in employment based on an irrational fear of contracting an illness or disease, aboriginal origin, source of income, political belief, affiliation or activity, that individual’s association with another individual or class of individuals having characteristics referred to in the protected rights.

Newfoundland’s Human Rights Act adds to its protected human rights social origin, disfigurement, source of income and political opinion and also the attachment of wages.

The legislation of Prince Edward Island also offers its mandate to protect political belief, ¹and source of income. Similar to the Quebec and B.C statutes, it offers its oversight to a person who has been convicted of a criminal or summary conviction offence which is unrelated to the employment of the person or intended employment.

The Canadian Human Rights Act includes within its prohibited grounds of discrimination a conviction for an offence for which a pardon has been granted or in respect of which a record of suspension has been ordered.

The legislation of the Yukon offers protection to those adversely impacted by decisions relating to linguistic background, political belief, association or activity, criminal charges or criminal record, source of income, actual or presumed association with persons or groups whose identity is determined by a prohibited ground. It is the sole jurisdiction to offer its protections to those accused of a crime. Given the presumption of innocence, it is a prudent value to protect.

Although the statute of B.C. does not have a provision similar to that immediately above, the interpretation of “criminal conviction” has been read to include a charge that has, ironically, not resulted in a conviction. ² The issue which arose was whether a person charged with a criminal offence who had been acquitted or where the charge has been withdrawn may seek the protection of this provision.

It would, of course, make no sense if a person which has been convicted and pardoned would be in a position of protection but a person who has been charged and acquitted would not. The legislation did not speak to this issue directly but the tribunal read the statute in such a liberal manner to bring about this just result.

One would expect that this broad interpretation would be applied in every jurisdiction. Apart from that of the Yukon, the statutes have been poorly drafted on this issue and absent such a universal interpretation, should be amended.

The North West Territories law bans adverse treatment due to family affiliation, political belief, political association, social condition, or a conviction that is subject to a pardon or record suspension.

The Nunavut legislation forbids discrimination due to receipt of a lawful source of income, and a conviction for which a pardon has been granted.

Certain types of cases tend to be based on conduct which is overt or obvious. These include cases based on failure to accommodate a disability, frequently “direct” sexual harassment and often claims based on family and/or marital status or creed and sometimes age.

A case of adverse treatment due to age is also a good example of this dichotomy. Topics which are controversial in overt age discrimination cases include mandatory retirement, early retirement initiatives and the accommodation requirements of older workers. These cases define the alleged offensive action overtly.

The factor of age would not be obvious at all when it has led to the denial of an employment opportunity.

Similarly, claims based on other grounds of discrimination such as sexual reprisal due to a sexual solicitation, race, religion, gender and age tend to be subtle and hence more difficult to prove. Direct evidence in these cases is rare, which explains why the standards of proof are more relaxed than in a civil court case.

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1.   The term “political belief” is confined to that of a registered political party.
2. in Junkin v B.C.