Ferrel v. Ontario
DATE: 19981207
DATE: 19981207
DOCKET: C27917
COURT OF APPEAL FOR ONTARIO
MORDEN A.C.J.O., WEILER and MOLDAVER JJ.A.
B E T W E E N : ) Chile Eboe-Osuji, Mark Hart
) and Barbara Bedont
MARILYN FERREL, SANDRA WHITING, ) for the appellants
GRACE EDWARD GALABUZI, and )
KIRSTEN LANGE ) Janet Minor and Richard Stewart
) for the respondent
Appellants )
) Mary Cornish and Faye Faraday
and ) for the intervener, Ontario
) Federation of Labour
ATTORNEY GENERAL OF ONTARIO )
)
Respondent ) Caroline Engmann
) for the intervener, African
and ) Canadian Legal Clinic in coalition
) with The Toronto Chapter,
) Congress of Black Women of
ONTARIO FEDERATION OF LABOUR ) Canada
)
Intervener ) Jennifer Scott and Carissima Mathen
) for the intervener, Women's Legal
and ) Education and Action Fund and
) the DisAbled Women's Network
) Canada
AFRICAN CANADIAN LEGAL CLINIC in )
coalition with TORONTO CHAPTER, )
CONGRESS OF BLACK WOMEN OF CANADA )
)
Intervener ) Heard: April 6 and 7, 1998
)
and )
)
WOMEN'S LEGAL EDUCATION AND ACTION )
FUND and DISABLED WOMEN'S NETWORK )
CANADA )
)
Interveners )
MORDEN A.C.J.O.:
[1] The appellants commenced an application for a declaration
that the Job Quotas Repeal Act, 1995, S.O. 1995 c. 4 is
unconstitutional as being in violation of s. 15 of the Canadian
Charter of Rights and Freedoms and for an order requiring the
Government of Ontario to implement employment equity as
prescribed in the Employment Equity Act, 1993, S.O. 1993, c. 35.
The Job Quotas Repeal Act, 1995 had repealed the Employment
Equity Act, 1993 and, also, repealed what may be called the
employment equity provisions in the Education Act, R.S.O. 1990,
c. E.2, the Human Rights Code, R.S.O. 1990, c. H.19, and the
Police Services Act, R.S.O. 1990, c. P.15. Dilks J., whose
reasons are reported at (1997), 149 D.L.R. (4th) 335 and 45
C.R.R. (2d) 177, dismissed the application and the appellants
appeal from his decision.
[2] As the foregoing indicates, the appellants' claim is based
on s. 15 of the Charter, the equality rights provision.
Specifically, they claim that their rights "to the equal
protection and equal benefit of the law" were infringed when the
Job Quotas Repeal Act, 1995 repealed the Employment Equity Act,
1993.
THE EMPLOYMENT EQUITY ACT, 1993 AND ITS REPEAL
[3] A statement of the facts should begin with a brief
description of the Employment Equity Act, 1993. This statute,
which comprised 59 sections, provided that "[a]boriginal people,
people with disabilities, people of racial minorities and women
constitute the designated groups for the purposes of this Act"
(s. 4). Each of the four appellants represents one of the four
designated groups. The Act reflected the choice of the previous
government, which was replaced by the current government in June
of 1995, on how best to accomplish equity and equal opportunity
in the workplace. The term "employment equity", a term coined in
the Report of the Commission on Equality in Employment, 1984
(R.S. Abella, Commissioner) (the "Abella Report") at p. 7, was
adopted by the previous government to describe the mandatory
scheme enacted to carry out this purpose.
[4] The motivation for the 1993 Act was, appropriately, set
forth in its preamble which reads:
The people of Ontario recognize that
Aboriginal people, people with disabilities,
members of racial minorities and women
experience higher rates of unemployment than
other people in Ontario. The people of
Ontario also recognize that people in these
groups experience more discrimination than
other people in finding employment, in
retaining employment and in being promoted.
As a result, they are underrepresented in
most areas of employment, especially in
senior and management positions, and they are
overrepresented in those areas of employment
that provide low pay and little chance for
advancement. The burden imposed on the people
in these groups and on the communities in
which they live is unacceptable.
The people of Ontario recognize that this
lack of employment equity exists in both the
public and private sectors of Ontario. It is
caused in part by systemic and intentional
discrimination in employment. People of merit
are too often overlooked or denied
opportunities because of this discrimination.
The people of Ontario recognize that when
objective standards govern employment
opportunities, Ontario will have a workforce
that is truly representative of its society.
The people of Ontario have recognized in the
Human Rights Code the inherent dignity and
equal and inalienable rights of all members
of the human family and have recognized those
rights in respect of employment in such
statutes as the Employment Standards Act and
the Pay Equity Act. This Act extends the
principles of those Acts and has as its
object the amelioration of conditions in
employment for Aboriginal people, people with
disabilities, members of racial minorities
and women in all workplaces in Ontario and
the provision of the opportunity for people
in these groups to fulfil their potential in
employment.
The people of Ontario recognize that
eliminating discrimination in employment and
increasing the opportunity of individuals to
contribute in the workplace will benefit all
people in Ontario.
[5] Although the preamble refers to both systemic and
intentional discrimination in employment it is clear that the
chief target of the statute was systemic discrimination. This
form of discrimination has been described as follows in the
Abella Report at p. 2 as follows:
Discrimination ... means practices or
attitudes that have, whether by design or
impact, the effect of limiting an
individual's or a group's right to the
opportunities generally available because of
attributed rather than actual
characteristics.
. . . .
It is not a question of whether this
discrimination is motivated by an intentional
desire to obstruct someone's potential, or
whether it is the accidental by-product of
innocently motivated practices or systems. If
the barrier is affecting certain groups in a
disproportionately negative way, it is a
signal that the practices that lead to this
adverse impact may be discriminatory.
. . . .
This is why it is important to look at
the results of a system.
This description was accepted by Dickson C.J.C. for the court in
Action Travail des Femmes v. Canadian National Railway Co.,
[1987] 1 S.C.R. 1114 at 1138-39. He went on to say at p. 1139:
In other words, systemic discrimination in an
employment context is discrimination that
results from the simple operation of
established procedures of recruitment, hiring
and promotion, none of which is necessarily
designed to promote discrimination. The
discrimination is then reinforced by the very
exclusion of the disadvantaged group because
the exclusion fosters the belief, both within
and outside the group, that the exclusion is
the result of "natural" forces, for example,
that women "just can't do the job" (see the
Abella Report, pp. 9-10). To combat systemic
discrimination, it is essential to create a
climate in which both negative practices and
negative attitudes can be challenged and
discouraged.
[6] The existence of systemic discrimination is not in issue in
this proceeding, nor is it in issue that it is a serious problem
that requires government response.
[7] Generally, the 1993 Act imposed an obligation on employers
to work toward the goal of a workplace that reflected the various
groups that make up Ontario society. The Act was based on the key
principles outlined below, which were set forth at greater length
in section 2:
(1) The members of the designated groups
were entitled to be considered for
employment, hired, retained, treated,
and promoted free of discriminatory
barriers.
(2) Every employer's workforce should
reflect designated group representation
in the community.
(3) Every employer was to ensure that its
employment policies and practices were
free from barriers and was obliged to
implement positive and supportive
measures with respect to the
recruitment, hiring, retention,
treatment and promotion of members of
the designated groups.
[8] The Act required employers to implement four steps to
employment equity:
(a) conduct a workforce survey to determine
the extent to which members of the
designated groups were present in the
workforce (s. 10);
(b) conduct a review of all employment
policies and practices to identify
barriers to the recruitment, hiring,
retention, treatment and promotion of
the designated groups (s. 11);
(c) prepare a plan to provide for specific
goals and timetables for:
(i) the elimination of barriers (s.
12(1)(a));
(ii) the implementation of positive
measures designed to assist in
recruitment, hiring, retention,
treatment and promotion of the
designated groups (s. 12(1)(b)),
and supportive measures for the
workforce as a whole (s. 12(1)(c));
(iii) the implementation of
measures designed to
accommodate members of the
designated groups (s.
12(1)(d));
(iv) specific goals and
timetables for the
matters referred to above
(s. 12(1)(e)); and
(v) specific goals and timetables with
respect the composition of the
employer's workforce (s. 12(1)(f).
(d) review the plan and prepare reports on
progress (ss. 13 and 15).
[9] The Act allowed the Lieutenant Governor in Council to make a
regulation governing the content of employment equity plans which
required plans to contain "numerical goals determined ... with
reference to percentages approved by the [Employment Equity]
Commission, that in the opinion of the Commission, fairly
reflected the representation of the designated groups in the
population of a geographical area or in any other group of
people" (s. 55(2)).
[10] The Job Quotas Repeal Act, 1995 has provisions that are
consequential to the repeal of the Employment Equity Act, 1993.
Section 1(5) is relevant to the issues raised in this proceeding.
It reads:
(5) Every person in possession of
information collected and compiled
exclusively for the purpose of complying with
section 10 of the Employment Equity Act, 1993
shall destroy the information as soon as
reasonably possible after this Act comes into
force.
[11] The current government is of the view that the Employment
Equity Act, 1993 was numbers-driven, undermined the merit
principle in hiring, and did not adequately address the attitudes
at the root of discrimination. In addition to repealing the
Employment Equity Act, 1993 and the related employment equity
provisions in the Police Services Act, the Education Act and the
Human Rights Code, the government introduced a voluntary equal
opportunity plan mandating:
(a) The Ministry of Citizenship, Culture and
Recreation to develop the equal
opportunity itself to support the
efforts of employers and employees to
remove barriers and share equal
opportunity experience and expertise;
(b) The Ministry of the Solicitor General
was to prepare guidelines for police
services and work with the police
community towards a new equal
opportunity police recruiting process;
(c) The Management Board Secretariat was to
design equal opportunity initiatives
emphasizing the merit principle, removal
of barriers, and zero tolerance of
workplace harassment and discrimination;
and
(d) The Ministry of Education and Training
was to create a plan for the educational
sector, including a policy statement for
school boards, colleges and
universities.
[12] The Equal Opportunity Plan is directed at supporting equal
opportunity in the workplace for all people in Ontario based on
the following principles:
i. individual merit should be the
basis for fair employment
practices;
ii employment practices must be in
compliance with the Human Rights
Code;
iii. it is important to provide and
maintain a work environment free of
discrimination and harassment;
iv. eliminating barriers in the
workplace, particularly for persons
with disabilities, and creating a
climate that values diversity,
enables all employees to maximize
their potential and contributes to
organizational success.
The Equal Opportunity framework includes
seven components:
i. services to support the equal
opportunity efforts of employers
and employees in the private and
broader public sectors, including a
one-window information and referral
service, a resource clearinghouse
via the "Gateway to Diversity", a
website designed to provide
integrated information,
demonstration projects and best
practices, and training and
education;
ii. a fund to support access and
accommodation for persons with
disabilities to participate in both
the paid workforce and the
volunteer sector;
iii. a review of how existing employment-
related programs within government
can better support accommodation
for persons with disabilities;
iv. a self-financing credential
assessment service to evaluate
academic credentials, improving
access to opportunity for those
trained and educated outside
Canada;
v. measures to promote equal
opportunity in the Ontario Public
Service;
vi. specific measures for police
services and the education sector;
vii. improvements in the efficiency and
effectiveness of the Ontario Human
Rights Commission.
THE CONCLUSIONS OF DILKS J.
[13] According to the reasons of Dilks J., the appellants before
him advanced four basic submissions. I shall set them forth and
then state, very briefly, Dilks J.'s responses to these
submissions.
1. The Ontario Government has a positive duty under s. 15 of
the Charter to enact employment equity legislation and,
having done so, has a corresponding duty to leave the same
in place.
[14] Dilks J. concluded on this issue that "the overwhelming
weight of authority negates the existence of any duty under the
Charter to legislate".
2. Alternatively, even if there was no duty to enact
legislation, having done so, the government was bound to
leave the legislation in place.
[15] Dilks J. held that, in these circumstances, there was no
constitutional requirement obliging the government to leave the
Employment Equity Act, 1993 in place.
3. The very manner and form in which the Job Quotas Repeal Act,
1993 was enacted has resulted in a poisoned atmosphere,
which itself is a violation of the s. 15 rights of the
applicants.
[16] Dilks J. held that "[t]he difficulty with this argument is
that it presupposes a "legislative distinction" from the effect
of Bill 8 (the Job Quotas Repeal Act, 1995) whereas any
distinction that may be said to have arisen following the repeal
of the Employment Equity Act, 1993 is indistinguishable from that
which existed prior to the enactment of that Act." He observed
further that while the applicants and perhaps others "may well
deplore the government's actions ... the action had no
substantive component; it merely restored the status quo as it
existed prior to the enactment of the Employment Equity Act,
1993."
4. The Job Quotas Repeal Act, 1995 is not saved or justified by
s. 1 of the Charter.
[17] Because Dilks J. had concluded that there was no Charter
violation it was unnecessary for him to consider this issue.
THE APPELLANTS' SUBMISSIONS
[18] Before this court the appellants' submissions, which were
elaborated upon by the interveners, were framed in the form of
issues, as follows:
1. Did Dilks J. err in holding that the Job Quotas Repeal Act,
1995 is not subject to review under the Canadian Charter of
Rights and Freedoms?
2. Did Dilks J. err in failing to find that the Job Quotas
Repeal Act violated s. 15 of the Charter?
3. In the alternative, did Dilks J. err in failing to find that
s. 15 of the Charter creates a positive duty on the
government to enact employment equity legislation?
4. Did Dilks J. err in failing to find that the Government of
Ontario misrepresented the Employment Equity Act, 1993 as
entailing job quotas, creating reverse discrimination, and
being contrary to merit, and that these misrepresentations
resulted in the violation of s. 15 of the Charter?
5. In the event that a violation of s. 15 of the Charter is
found, is it saved by s. 1 of the Charter?
6. If the answer to question 5 is no, what is the appropriate
remedy in the circumstances?
[19] I shall deal with these issues in the order presented.
1. Did Dilks J. err in holding that the Job Quotas Repeal Act,
1995 was not subject to review under the Charter?
[20] Section 32(1)(b) of the Charter provides:
This Charter applies
....
(b) to the legislature and government of
each province in respect of all matters
within the authority of the legislature
of each province.
[21] It is not clear to me that Dilks J. held that the Job Quotas
Repeal Act, 1995 was not subject to review under the Charter. If
he had, it would not have been necessary for him to engage in the
s. 15 analysis that forms an important part of his reasons. In
any event, I think that this issue can be dealt with briefly. The
Job Quotas Repeal Act, 1995 is an enactment of the legislature of
Ontario. As such, regardless of what may be argued to be its
effect (changing the law, returning to the status quo before the
Employment Equity Act, 1993, etc.) it is clearly a form of
government action which requires scrutiny under the Charter - in
this case, under s. 15.
2. Does the Job Quotas Repeal Act, 1995 violate s. 15 of the
Charter?
[22] Section 15 reads:
(1) 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.
(2) Subsection (1) does not preclude any
law, program or activity that has as its
object the amelioration of conditions of
disadvantaged individuals or groups including
those that are disadvantaged because of race,
national or ethnic origin, colour, religion,
sex, age or mental of physical disability.
[23] By reason of the manner in which the appellants have stated
and ordered their submissions it can be seen that their
submission on this issue is not dependent on there being any
constitutional obligation on Ontario to have enacted the
Employment Equity Act, 1993 in the first place. In proceeding
this way, the appellants have reversed the order of the
presentation which they made before Dilks J., at least in so far
as this is indicated in his reasons. Before Dilks J. the first
argument was that because the province had a duty to enact
employment equity legislation it was constitutionally enjoined
from repealing it.
[24] For reasons which I shall give, I do not think that in
arriving at an ultimate conclusion on the validity of the repeal
of the Employment Equity Act, 1993 one can properly ignore the
question of whether there was a constitutional obligation to
enact this Act in the first place. I turn now to the s. 15
analysis.
[25] In Vriend v. Alberta, [1988] 1 S.C.R. 493, Cory J., for the
majority, set forth several judicial statements of the proper
approach to analyzing claims under s. 15 and then said at
paragraphs 73 and 74:
[para 73] These approaches to the analysis of
s. 15(1) have been summarized and adopted in
subsequent cases, e.g. Eaton [Eaton v. Brant
County Board of Education, [1997] 1 S.C.R.
241] (at para. 62), Benner [Benner v. Canada
(Secretary of State), [1997] 1 S.C.R. 241]
(at para. 69) and, most recently, Eldridge
[Eldridge v. British Columbia (Attorney
General), [1997] 3 S.C.R. 624]. In Eldridge,
La Forest J., writing for the unanimous
Court, stated (at para. 58):
While this Court has not adopted a
uniform approach to s. 15(1), there
is broad agreement on the general
analytic framework; see Eaton v.
Brant County Board of Education, [
1997] 1 S.C.R. 241, at para. 62,
Miron, supra, and Egan, supra. A
person claiming a violation of s.
15(1) must first establish that,
because of a distinction between
the claimant and others, the
claimant has been denied "equal
protection" or "equal benefit" of
the law. Secondly, the claimant
must show that the denial
constitutes discrimination on the
basis of one of the enumerated
grounds listed in s. 15(1) or one
analogous thereto.
[para 74] In this case, as in Eaton, Benner
and Eldridge, any difference that may exist
in the approach to s. 15(1) would not affect
the result, and it is therefore not necessary
to address those differences. The essential
requirements of all these cases will be
satisfied by enquiring first, whether there
is a distinction which results in the denial
of equality before or under the law, or of
equal protection or benefit of the law; and
second, whether this denial constitutes
discrimination on the basis of an enumerated
or analogous ground.
[26] In the case of a law that is challenged, as opposed to
governmental action taken under law (e.g., as in Eldridge v.
British Columbia (Attorney General), [1997] 3 S.C.R. 624), the
first part of the analysis would be directed specifically to "a
distinction created by the questioned law", see, e.g., Egan v.
Canada, [1995] 2 S.C.R. 513 at 584.
[27] The "questioned law" in this case is submitted to be the Job
Quotas Repeal Act, 1995. The appellants submit that women,
persons with disabilities, aboriginal persons, and members of
racial minorities (the designated groups) experience systemic
employment discrimination which is significant and intractable.
The repealed Employment Equity Act, 1993 and employment equity
provisions in the Police Services Act and the Education Act,
provided a remedy for this systemic employment discrimination.
The Job Quotas Repeal Act, 1995, by removing this statutory
remedy for systemic employment discrimination has an adverse and
disproportionate impact on, and thereby denies, substantive
equality to members of the designated groups because of the
social reality that it is designated group members who experience
this systemic discrimination and not white able-bodied males.
[28] The Job Quotas Repeal Act, 1995 is discriminatory, the
appellants submit, because the distinction between the impact on
designated group members and on white able-bodied males is on the
basis of the enumerated grounds of race, sex and disability. The
Act is also discriminatory since it has the effect of:
(a) Denying designated group members effective legal
recourse for systemic employment discrimination;
(b) Reinforcing negative stereotypes and prejudicial
attitudes that members of these groups are unqualified
or lack merit; and
(c) Making it more difficult for willing employers to
proceed with equity programs.
[29] Finally, the appellants submit that s. 1(5) of the Job
Quotas Repeal Act, 1995, which requires the destruction of
workforce survey data, provides an independent basis for finding
a violation of s. 15.
[30] In considering the appellants' submission, certain important
factors, in my view, must be considered. One is that systemic
discrimination relating to employment was, before the enactment
of the 1993 Act, and still is, prohibited by the Human Rights
Code, R.S.O. 1990, c. H.19, ss. 5, 9, 11 and 14 (which authorizes
special programs designed to assist disadvantaged persons). The
Code provides for more prohibited grounds of discrimination than
does the 1993 Act. Every individual has the right not to be
systematically discriminated against in relation to employment
and any person who experiences discrimination has recourse to the
Human Rights Commission. The contribution of the 1993 Act is the
creation of machinery designed to promote this right. The Human
Rights Code, in the main, provides for a complaints-driven
process.
[31] Accepting that the Human Rights Code confers a substantive
right not to be discriminated against in relation to employment,
either directly or systemically, the question is whether the
differences between the enforcement approaches of the 1993 Act
and the Code are a matter of constitutional dimension. The
appellants strongly submit that they are. They submit that the
intractable nature of systemic discrimination requires pro-active
measures like those found in the 1993 Act. The Human Rights Code,
which is reactive in its scheme, depending as it does on
individual complaints of discrimination in employment, is
inadequate to the task. (See Lepofsky, "Understanding the Concept
of Employment Equity: Myths and Misconceptions" (1994), 2
Canadian Labour Law Journal 1 at 3-4.)
[32] The respondent has advanced voluminous materials to the
effect that the appellants' assertions are, at least, debateable.
As I have indicated, the respondent accepts that systemic
discrimination in employment is a significant problem, but
submits that the choice as to which social policy response is
most appropriate and effective is inevitably informed by the
policy maker's views or assumptions about the nature and causes
of the problem, the costs and effects of both the problem and the
policy response, as well as potential public acceptance of a
given policy response. The respondent submits that many of these
issues are the subject of controversy and debate. Further, the
extent to which a proposed policy response will be accepted as
legitimate will depend on the balance struck between the benefits
of the remedy and its costs and consequences. The "harder" the
policy response, the greater the likelihood that negative
consequences will be assumed to occur. Negative consequences
would include concerns that the merit principle is being
subverted, that program beneficiaries are stigmatized by others,
and that the recruitment of persons to satisfy goals is unfair to
those with merit and is occurring at the expense of safety and
competency considerations, to name only a few.
[33] While I may be inclined to agree with the Abella Report that
"[s]ystemic discrimination requires systemic remedies" (p. 9) -
of the kind in the 1993 Act - I accept, as did MacPherson J. at
the interlocutory stage, and Dilks J. on the main application,
that the question is clearly debatable. Even strong supporters of
employment equity legislation leave some room for the
effectiveness of the Human Rights Code:
In terms of employment equity, s. 11 is of
particular importance; s. 11(1) protects
workers against constructive
(systemic/adverse impact/effect)
discrimination and s. 11(2) puts the onus on
employers to accommodate the needs of workers
covered by the Code short of undue hardship.
The Commission, a board of inquiry or a court
under subsection 11(3) shall consider any
standards prescribed by the regulations for
assessing what is undue hardship. Finally, s.
14(1) permits special programs for all groups
covered under the Code that have been found
to be disadvantaged in employment. The
Commission has published guidelines for such
programs. Hence, employment equity programs
are protected against claims of reverse
discrimination.
While s. 11 does not introduce a novel
concept of human rights in employment, it
holds within itself the possibility of an
effective attack on systemic discrimination.
(Tremblay and Rudner, "Enforcement Mechanisms
in Employment Equity Assessment and Direction
for the Nineties" in Racial Discrimination
Law and Practice (1995), 6-1 at 6-48.1 and 6-
49.)
The same point is made in Judith Keene's Human Rights in Ontario,
2nd ed. (1992) at p. 115.
[34] Accepting that the government recognizes the existence of
systemic discrimination and that its bona fides in approaching
the problem cannot be reasonably challenged, and that the policy
issues are complex and the responses to them debatable, I am
persuaded that the differences between the Human Rights Code and
the 1993 Act are not a matter of constitutional dimension, i.e.,
that they do not involve a s.15(1) distinction.
[35] Two other factors to be taken into account are the important
considerations that there was probably no constitutional
obligation to enact the Employment Equity Act, 1993 in the first
place and that this statute was enacted under the shield of s.
15(2) of the Charter. In the next part of these reasons, in
addressing the appellants' third submission, I set forth reasons
why, in my view, s. 15(1) probably does not impose the obligation
to enact the Employment Equity Act, 1993.
[36] If there is no constitutional obligation to enact the 1993
Act in the first place I think that it is implicit, as far as the
requirements of the constitution are concerned, that the
legislature is free to return the state of the statute book to
what it was before the 1993 Act, without being obligated to
justify the repealing statute under section 1 of the Charter. If
this is so, it cannot be said that there is any legislative
distinction involved as a first step in a s. 15(1) analysis. The
effect of the repeal is that there is, as was the case before the
enactment of the 1993 Act, no mandatory affirmative action law
operating in the area of employment. This does not create or
involve any distinction or any issue of equal protection of the
law - and the effect is not a distinction which results from an
underinclusive law exemplified in such cases as Eldridge and
Vriend.
[37] I think that it is important to keep in mind that the
Employment Equity Act, 1993 was enacted under the protection of
s. 15(2) of the Charter. This provision shields it from the
challenge that it is underinclusive in that it does not include
the discriminatory grounds of age, religion, or sexual
orientation within its protection. It would be ironic, in my
view, if legislative initiatives such as the 1993 Act with its
costs and administrative structure should, once enacted, become
frozen into provincial law and susceptible only of augmentation
and immune from curtailing amendment or outright repeal without
s. 1 justification. If such were the case, it could have an
inhibiting effect on legislatures enacting tentative,
experimental legislation in areas of complex social and economic
relations.
[38] The following passage in Irwin Toy Ltd. v. Quebec (Attorney
General), [1989] 1 S.C.R. 927 at 993, albeit concerned with a
different issue (s. 1 justification under the Charter) is
descriptive of the kinds of consideration involved in this
problem:
When striking a balance between the claims of
competing groups, the choice of means, like
the choice of ends, frequently will require
an assessment of conflicting scientific
evidence and differing justified demands on
scarce resources. Democratic institutions are
meant to let us all share in the
responsibility for these difficult choices.
[39] Finally, I refer to a passage in the reasons of Sharpe J. in
Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287
(Gen. Div.) at 301, a case concerned with the constitutionality
of a statute which repealed a statute enacted a year earlier
which had put an end to the exclusion of agricultural workers
from Ontario's statutory labour relations regime:
In my view, if the Legislature is free to
decide whether or not to act in the first
place, it cannot be the case that once it has
acted in a manner that enhances or encourages
the exercise of a Charter right, it deprives
itself of the right to change policies and
repeal the protective scheme.
I should note that Sharpe J., after making this statement,
referred to the decision of Dilks J. in the present case.
[40] I shall now consider s. 1(5) in the 1995 Act, quoted at the
outset of these reasons, which requires the destruction of
information and goes beyond merely repealing the 1993 Act. The
appellants submit that it has the effect of withholding or
limiting access to employment opportunities for the four
designated groups which are available to other members of
society. The respondent stresses that the provision relates
"exclusively" to information collected and compiled to comply
with the 1993 Act and was included to protect employees' privacy
rights and prevent potential misuse of personal information that
had been collected to comply with the repealed legislation and
is, accordingly, no longer required. (Cf. the approaches in
privacy legislation on the use of personal information by
government after the governmental purpose for which its
collection was authorized by law had ceased to exist: Freedom of
Information and Privacy Act, R.S.O. 1990, c. F.31, ss. 38(2) and
40(4) and the Privacy Act, R.S.C. 1985, c. P-21, ss. 6(3) and
7(a).) The provision, however, was framed so that it would not
interfere with employees in the federal contract or voluntary
accommodation and equality programmes.
[41] This is a troublesome provision. It is clearly consistent
with, and consequent upon, the repeal of the 1993 Act but it also
is concerned with information that would be valuable in carrying
out voluntary programmes. In any event, I do not think that s.
1(5) is unconstitutional or that it renders the balance of the
1995 Act unconstitutional. Accepting that there was no
constitutional obligation to enact s. 10 of the Employment Equity
Act, 1993 (the information gathering provision), I do not think
that undoing its consequences is unconstitutional.
3. Does s. 15 create positive duty on government to enact
employment equity legislation?
[42] On the fundamental question whether s. 15 of the Charter
imposes a positive obligation on legislatures to enact
legislation giving effect to the rights referred to in that
provision, La Forest J., for the Supreme Court of Canada, said
the following in Eldridge v. British Columbia (Attorney General),
supra, at 678:
It has been suggested that s. 15(1) of the
Charter does not oblige the state to take
positive actions, such as provide services to
ameliorate the symptoms of systemic or
general inequality; see Thibaudeau, supra, at
para. 37 (per L'Heureux-Dubé J.). Whether or
not this is true in all cases, and I do not
purport to decide the matter here, the
question raised in the present case is of a
wholly different order.
[43] I interpret this as holding that the Supreme Court of Canada
has left open the possibility, in some cases, that s. 15(1) may
oblige the state to take positive actions to ameliorate the
symptoms of systemic or general inequality.
[44] Because, for reasons set forth in paragraphs 72 and 73 of
this judgment relating to provisions in the Human Rights Code, I
need not come to a determinate conclusion on whether s. 15(1) of
the Charter imposes a positive duty on legislatures to enact
legislation to combat systemic discrimination in employment, I
shall not do so. My present view, however, is that no such
obligation is imposed. In setting forth my reasons for this view,
I shall consider the wording of the Charter, relevant
interpretative factors, and what has been said on this question
in judgments and in extra-judicial literature.
[45] The context for considering the question includes other
provisions in the Charter. There are some sections which clearly
appear to require some government action. I refer to those which
confer the right to vote (s. 3), the right to an interpreter in
court (s. 14), the right, in certain circumstances, to government
services in English or French (s. 20), and the right to minority
language instruction and educational facilities (s. 23). The
wording of s. 15, when compared to the wording of these sections,
falls considerably short of indicating a positive duty on
governments to take action.
[46] Further, the particular wording in s. 15(1), which confers
the right to the equal protection and equal benefit of the law,
envisages, as I have already indicated in the preceding part of
these reasons, a comparative situation against which to judge the
effect of the impugned law. This wording indicates that the
purpose of s. 15 is to require that when laws are enacted they do
not incorporate distinctions that discriminate on Charter
grounds. With this in mind, it is difficult to read s. 15 as
imposing a general obligation to advance equality values.
[47] If it is thought that the term "the right" in s. 15(1)
implies a correlative positive duty on governments to give effect
to the right in the form of legislation, there are three answers.
The first is indicated in what I have just said - that the right
is not a generalized one to have equality interests advanced. The
second relates to the fundamental scheme of the Charter under
which "the right" is vindicated by s. 52(1) which provides, in
the present context, that any law which is inconsistent with s.
15(1) "is, to the extent of the inconsistency, of no force or
effect". Third, as far as the immediate context of s. 15(1) is
concerned, the obligation purportedly imposed by s. 15(1) to
enact employment equity legislation would be inconsistent with
s. 15(2) which may be said both to shield and encourage
legislation of this kind (see the Abella Report at p. 14). I have
already indicated that, but for s. 15(2), the Employment Equity
Act, 1993 might be vulnerable to constitutional challenge by
reason of its under-inclusive nature. Because s. 15(2), although
concerned with pro-active legislation like the employment equity
legislation in this case, clearly does not impose an obligation
to enact such legislation, it does not seem sensible to read s.
15(1) as requiring the very result s. 15(2) is designed to
foster.
[48] Finally, if it is thought that s. 15(1) imposes an
obligation to enact employment equity legislation, what is the
nature and scope of the obligation? A court is not competent to
answer this question in a satisfactory way. It is a question that
is not justiciable. Legislatures require substantial freedom in
designing the substantive content, procedural mechanisms, and
enforcement remedies in legislation of this kind. They are the
appropriate branch of government to make these decisions, not
courts working from the general terms of s. 15(1).
[49] In this vein, what would be the constitutional minimum
content of employment equity legislation? Would it be all of the
measures in the 1993 legislation, which contained some 59
sections? If not, what is the minimum? Considerations of this
nature are further indications that it would not be sensible to
interpret s.15(1) as imposing an obligation to enact laws the
constitutional adequacy of which would be subject to judicial
review under the Charter.
[50] I turn now to the case law on the question of the
constitutional duty to enact legislation that stands in addition
to the obiter statement of La Forest J. in Eldridge.
[51] Possibly along the same lines as his statement in Eldridge,
is the following observation of La Forest J. in Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143 at 193:
I am not prepared to accept at this
point that the only significance to be
attached to the opening words that refer more
generally to equality is that the protection
afforded by the section is restricted to
discrimination through the application of
law. It is possible to read s. 15 in this way
and I have no doubt that on any view redress
against that kind of discrimination will
constitute the bulk of the courts' work under
the provision. Moreover, from the manner in
which it was drafted, I also have no doubt
that it was so intended. However, it can
reasonably be argued that the opening words,
which take up half the section, seem somewhat
excessive to accomplish the modest role
attributed to them, particularly having
regard to the fact that s. 32 already limits
the application of the Charter to legislation
and governmental activity. It may also be
thought to be out of keeping with the broad
and generous approach given to other Charter
rights, not the least of which is s. 7 ,
which like s. 15 is of a generalized
character.
[52] While La Forest J. does not indicate what other
"significance" may be attached to the opening words of s. 15 it
might be inferred that he had something like his Eldridge
comments in mind.
[53] Obiter observations of Wilson J. in McKinney v. University
of Guelph, [1990] 3 S.C.R. 229 at 412 are to the same effect as
those of La Forest J.:
It has been argued by the respondents as well
as by some of the interveners that this limit
upon the reach of the Code does not offend
the Charter because the province was under no
obligation to provide any protection against
discrimination in the first place. They say
that absent such an obligation there is no
room for constitutional scrutiny of the
state's failure to go far enough in
legislating human rights protection. It is
not self-evident to me that government could
not be found to be in breach of the Charter
for failing to act. Whether the Constitution
is implicated when the state fails to do
something is a question which has plagued the
American courts for many years. Indeed,
Laurence Tribe has commented that it is
precisely when the state has not acted that
the court is called upon to make the most
difficult determinations regarding the scope
of the Constitution: see Constitutional
Choices at p. 246 et seq. Since this is not
an instance where the province has completely
failed to act, we are happily relieved from
deciding such a difficult question on these
appeals, and I refrain from doing so.
[54] I shall now set forth judicial statements indicating that s.
15 does not impose a positive duty on governments to act. The
view of L'Heureux Dubé J. in Thibaudeau, referred to by La Forest
J. in Eldridge, is not the only one. I shall quote it in due
course.
[55] In Andrews, supra, [1989] 1 S.C.R. 143 at 163 McIntyre J.,
for the majority, including Wilson J. on this point, delineated
the scope of Charter scrutiny and emphasized the fundamental
distinction between the application of human rights legislation
and the Charter:
Section 15(1) of the Charter provides
for every individual a guarantee of equality
before and under the law, as well as the
equal protection and equal benefit of the law
without discrimination. This is not a general
guarantee of equality; it does not provide
for equality between individuals or groups
within society in a general or abstract
sense, nor does it impose on individuals or
groups an obligation to accord equal
treatment to others. It is concerned with the
application of the law.
[56] At p. 171 McIntyre J. repeated:
It is clear that the purpose of s. 15 is to
ensure equality in the formulation and
application of law.
[57] At p. 175, with respect to the meaning of "discrimination"
in s. 15, he said:
The Court in the case at bar must address the
issue of discrimination as the term is used
in s. 15(1) of the Charter. In general, it
may be said that the principles which have
been applied under the Human Rights Acts are
equally applicable in considering questions
of discrimination under s. 15(1). Certain
differences arising from the difference
between the Charter and the Human Rights Acts
must, however, be considered. To begin with,
discrimination in s. 15(1) is limited to
discrimination caused by the application or
operation of law, whereas the Human Rights
Acts apply also to private activities.
[Emphasis added.]
[58] In McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at
261-263 La Forest J. said for himself, Dickson C.J.C., and
Gonthier J., after quoting s. 32 of the Charter:
These words give a strong message that
the Charter is confined to government action.
This Court has repeatedly drawn attention to
the fact that the Charter is essentially an
instrument for checking the powers of
government over the individual. In Hunter v.
Southam Inc., [1984] 2 S.C.R. 145, at p. 156,
Dickson J. (as he then was observed: "It is
intended to constrain governmental action
inconsistent with those rights and freedoms;
it is not in itself an authorization for
governmental action."
....
... Historically, bills of rights, of which
that of the United States is the great
constitutional exemplar, have been directed
at government. Government is the body that
can enact and enforce rules and
authoritatively impinge on individual
freedom. Only government requires to be
constitutionally shackled to preserve the
rights of the individual. Others, it is true,
may offend against the rights of individuals.
This is especially true in a world in which
economic life is largely left to the private
sector where powerful private institutions
are not directly affected by democratic
forces. But government can either regulate
these or create distinct bodies for the
protection of human rights and the
advancement of human dignity.
....
Opening up private activities to
judicial review could impose an impossible
burden on the courts. Both government and the
courts have recognized the need to limit
judicial review by means, for example, of
privative clauses and deference to
specialized tribunals, techniques that would
be unavailable in a Charter context. As well,
as I noted earlier, government may, in many
cases, establish more flexible means to deal
with individual rights. Thus Human Rights
Commissions have more flexible techniques for
dealing with discriminatory practices without
unduly constraining the exercise of other
democratic rights that are extremely hard to
balance; see McLellan and Elman, ibid., and
Tarnopolsky (now Mr. Justice Tarnopolsky),
"The Equality Rights int he Canadian Charter
of Rights and Freedoms" (1983), 61 Can. Bar
Rev. 242, at p. 256.
[59] While subjecting private activities directly to review under
the Charter is not the same thing as interpreting s. 15(1) as
imposing a duty on legislatures to enact legislation to govern
private activities, the considerations referred to in the third
passage are applicable to both. Legislatures have flexibility and
a wide range of choices. Courts, acting under the Charter, have
no guidance in making their determinations of what the Charter
requires of legislatures.
[60] At p. 318 of McKinney La Forest J. also said:
The Charter, we saw earlier, was expressly
framed so as not to apply to private conduct.
It left the task of regulating and advancing
the cause of human rights in a private sector
to the legislative branch. This invites a
measure of deference for legislative choice.
[61] In Thibaudeau v. Canada, [1995] 2 S.C.R. 627, in a case
concerned with whether s. 56(1)(b) of the Income Tax Act, which
required a separated or divorced parent to include, in computing
income, amounts received as alimony for the maintenance of
children, infringed s. 15(1) of the Charter, L'Heureux-Dubé, in a
dissenting judgment - but not on the point dealt with - said at
p. 655:
... Although s. 15 of the Charter does not
impose upon governments the obligation to
take positive actions to remedy the symptoms
of systemic inequality, it does require that
the government not be the source of further
inequality. Such a scheme, in my view, would
constitute a source of further inequality.
[62] In this court's decision in Lovelace v. Ontario (1997), 33
O.R. (3d) 735 as part of its reasoning in support of a limited
form of judicial review of programs under s. 15(2) of the Charter
this court said at p. 755:
Governments have no constitutional obligation
to remedy all conditions of disadvantage in
our society.
[63] The general issue was addressed by O'Leary J. in Service
Employees International Union, Local 204 v. Ontario (Attorney
General) (1997), 35 O.R. (3d) 508 (Gen. Div.) at 526:
... The unfortunate state of women prior to
the Pay Equity Act, 1987 as the objects of
systemic gender wage inequity was created by
the marketplace and stereotypical attitudes,
not by government. It was not because of any
action by government that they were in the
plight they were in. The Charter does not
place a positive obligation on government to
eliminate such inequity. Rather, the
government must not create inequity.
[64] Finally, I refer to the reasons given by MacPherson J.
dismissing a motion for an interlocutory injunction in the
present case before the hearing of the main application. The
injunction sought was to suspend the operation of the Job Quotas
Repeal Act, 1995 pending the determination of the application. In
dismissing the motion MacPherson J. said:
The purpose of the Charter is to ensure that
governments comply with the Charter when they
make laws. The Charter does not go further
and require that governments enact laws to
remedy societal problems, including problems
of inequality and discrimination. One can
hope that governments will regard this as
part of their mission; however, the Charter
does not impose this mission at the high
level of constitutional obligation - Section
32 of the Charter states that the Charter
applies to governments. Governments speak
through laws, regulations and practices. In
Ontario, the current legislature has decided
not to speak in the domain of employment
equity. It has decided to leave this, at
least for the time being, to the realm of
private activity. Although many people
including the Applicants, may regret and
oppose this decision, the legislature is
entitled to make it. (December 29, 1995,
unreported)
[65] I note that in arriving at this conclusion MacPherson J. was
of the view that no "serious constitutional issue" was raised.
This latter conclusion was relevant to the first requirement to
be satisfied before an interlocutory injunction could be granted.
[66] The judicial statements clearly preponderate against
concluding that s. 15(1) imposes a positive obligation on
legislatures to enact employment equity legislation.
[67] The extra-judicial writing on the subject is to the same
effect. In Professor Gibson's The Law of the Charter: Equality
Rights (1990), the subject is dealt with at pp. 335-37 under the
title "A Right to Affirmative Action". The articles pro and con
on the question of whether s. 15(1) imposes a positive obligation
on legislatures are helpfully listed in footnotes on page 335.
Professor Gibson's views are on the minority side. I shall not
analyze them in any detail. I say, with great respect for his
thought-provoking points, that I do not think that the terms of
the Charter, which I have discussed above, are reasonably capable
of supporting his interpretation.
[68] At the conclusion of his analysis, at p. 337, Professor
Gibson observed:
Courts are not the most appropriate
institutions to design affirmative action
programs. There are usually too many
variables involved, too much supervision
required, and too many financial
implications, to suit the judicial process.
I agree with these observations.
[69] The observations are followed by:
The courts can issue declaratory judgments,
however, indicating to the public whether or
not their governments are taking adequate
steps to relieve society's unfortunates of
the burdens of disadvantage. Courts may also
have the power to make generalized orders
(e.g., "Take all reasonable steps to ensure
that by 1995 women in the civil service are
represented in all management ranks and all
salary levels to an extent proportionate to
their overall representation in the
service."), leaving to politicians and
administrators the appropriate ways and means
of achieving that goal. That kind of
collaboration between the judicial and
political worlds would represent the ideal
form of decision-making in a democracy like
ours.
I am doubtful whether the tasks described in these statements lie
within the proper and effective judicial domain in this country.
As I have said, they involve the resolution of issues that are
not justiciable.
[70] Professor Pilkington in "The Canadian Charter of Rights and
Freedoms: Impact on Economic Policy and Economic Liberty
Regarding Women in Employment" (1988), 17 Man. L.J. 267 deals
with the question as follows at pp. 271-72:
Section 15(1) of the Charter guarantees
procedural equality in the application of the
law (equality before the law) and substantive
equality in the provisions of the law
(equality under the law, equal protection of
the law and equal benefit of the law).
Theoretically, it is possible that this
guarantee could be very broadly read as
requiring that everyone "benefit equally from
the existence of a given legal regime," thus
imposing an affirmative obligation on
legislatures, governments, and courts to cure
inequalities. In its widest conceivable
scope, then, section 15(1) could be
interpreted as mandating a socio-economic
revolution. It goes without saying that there
is no evidence in the legislative history of
the Charter that this result was intended;
nor would this interpretation be textually
sound. Section 15(1) guarantees only that the
law will operate without discrimination. It
does not require that the law be used to put
everyone in an equal position. The express
allowance of affirmative action in section
15(2) would not be necessary if section 15(1)
imposed a constitutional obligation to
enhance equality and eradicate inequality.
[71] Finally, in a research paper prepared for the Abella
Commission entitled "The Constitutional Dimensions of Promoting
Equity in Employment" (in Research Studies of the Commission on
Equality in Employment (1985), 247 at p. 259 under the title
"Systemic Discrimination", Professor Marc Gold expresses the view
that "the general position is likely to be that the Charter does
not impose such positive duties on government". The basic reason
for this is that "a considerable measure of legislative
flexibility over matters of social policy ought to be tolerated."
[72] Before concluding this part of my reasons, I shall consider
the issue on the assumption that the Charter does impose a
positive duty on legislatures to enact legislation to combat
systemic discrimination in employment. As I have noted earlier in
these reasons, the Human Rights Code, R.S.O. 1990, c. H.19 has
done so in ss. 5, 9, 11 and 14, and, also, contains an offence-
creation provision (s. 44) relating to discrimination that
infringes the right to equal treatment in employment and other
fields.
[73] Assuming that there is a positive duty, does this
legislation satisfy it? My reasons in the preceding part of this
judgment, in support of the conclusion that the differences
between the Human Rights Code and the 1993 Act are not of a
constitutional dimension, are directly relevant to this question.
It follows from these reasons that it must be the case that, if
the Charter imposes a positive duty on legislatures to enact
legislation to combat systemic discrimination in employment, the
Human Rights Code satisfies this duty.
4. Did Dilks J. err in failing to find that the Government of
Ontario misrepresented the Employment Equity Act, 1993, as
entailing job quotas, creating reverse discrimination and
being contrary to merit, and that these misrepresentations
resulted in a violation of s. 15 of the Charter?
[74] I need not deal with the factual aspect of this submission.
It raises debatable issues, some of them semantic and others
matters of degree. In any event, assuming the factual allegations
to be correct, I do not see where they take the appellants. The
only relief sought in this proceeding are declarations that the
1995 Act is unconstitutional and that the 1993 Act, and the
repealed employment equity provisions in the Education Act, the
Police Services Act, and the Human Rights Code are in full force
and effect. The allegations have no bearing on determining the
validity of the 1995 Act.
5. & 6. Justification under section 1 of the Charter and the
appropriate remedy
[75] Because the appellants have not shown any constitutional
infringement, these issues do not arise. I mention that the
respondent did not advance an alternative position under s. 1 in
the event that the appellants were successful in showing a
constitutional infringement.
DISPOSITION
[76] I would dismiss the appeal without costs.
Released: December 7, 1998
|