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The B.C.
Human Rights Coalition

#1202
510 West Hastings St.
Vancouver, B.C.
V6B 1L8

Tel: 604.689.8474
Fax: 604.689.7511

1-877-689-8474


   


THE LAW
> GROUNDS OF PROTECTION

Grounds of Protection in B.C.

 

Overview

Age

Ancestry, Colour, Place of Origin and Race

Conviction

Disability - Physical or Mental

Family Status and Marital Status

Political Belief

Religion

Sex

Sexual Orientation

Source of Income

Chart - Which Grounds are Protected in What Areas

Retaliation

 

Overview

Human rights legislation works in the public arena and provides protection, procedures and remedies for those who have experienced discrimination. The protections afforded to us in human rights law flow from the Charter of Rights and Freedoms.  Because of this, human rights legislation is considered quasi-constitutional and takes precedence over, and often influences, other pieces of legislation.

The history of discrimination in Canada is one of a changing societal and legal awareness of specifically disadvantaged groups of people.  In British Columbia, our first human rights legislation was the Fair Employment Practices Act (1956).  This Act protected from discrimination on the basis of race, creed (religious belief), and colour.  As well, it applied to employment only.  In 1973, British Columbia got its first Human Rights Code, which extended protection to public services, rental housing and to the purchase of property.  New groups of people were brought into protection, and the grounds of marital status, sex, ancestry, place of origin, political belief, criminal conviction and age were added.  In 1984, disability was added, and in 1992, sexual orientation and family status completed the grounds of protection that exist today.  In 1996, an amendment to the Code extended protection to include hate propaganda, defined as any publication or display of any notice, sign, symbol, emblem or other representation that is not private and is likely to expose a person or group of persons to hatred or contempt.   Amendments to the Code, effective January 1, 2008 extend age protections into the area of the Code that deals with services, facilities and accommodations customarily available to the public and the defination of age expanded to include those over the age of 65. 

  

 

Age

Both young and old individuals are open to the effects of negative stereotyping and discrimination due to their age. Generalized assumptions, such as “she’s too young to perform that job” or “he’s too old to retrain” run counter to human rights principles and should be avoided. Assessments should be based on individual abilities, merit, and performance.

Age can refer to an individual's actual age, his or her membership in a specific age-group, (e.g., 45 to 50, or over 60), or to a generalized characterization of his or her age (e.g., too old, or too young).

In B.C., age is a protected ground of discrimination in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising;
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership because of age, or discriminating against a person or member due to their age);
  • services customarily available to the public (such as restaurants, stores, services provided by strata councils, schools and government programs);
  • tenancy; and
  • publications.

In each of these areas, age protection is limited to those 19 years of age and older.  This does not mean that those younger than 19 cannot file complaints of discrimination based on grounds other than age.  For example, if a 17 year old experiences sexual harassment in the workplace, a complaint may still be filed under the grounds of sex (the ground of sex includes sexual harassment).

Age protection does not extend to the purchase of property. This means that condominiums may legally refuse ownership based on age preferences (i.e. over 30 building only).

For further information, discussion and examples of age discrimination please see the following:

                                                                              

Ancestry, Colour, Place of Origin and Race

Each of the above grounds is protected in B.C.’s human rights legislation. Each characteristic may be cited alone to illustrate a discriminatory incident, or the characteristics may be combined in order to better reflect a given situation. Either way, the grounds of ancestry, colour, place of origin and race, attempt to get to the root of racism and racial discrimination.

Ancestry typically refers to discrimination based on one’s ancestors and is often cited as a ground by First Nations people. Colour refers to skin-tone and extends protection across the full range of different skin-tones.

Place of Origin typically refers to your birthplace or place of training. In Bitonti v. British Columbia (Ministry of Health No. 3) [BCHRT (1999), 36 CHRR D/263], the Tribunal ruled that a requirement of the College of Physicians and Surgeons of British Columbia that foreign trained doctors have an additional year of post-graduate training in order to be eligible for registration constituted discrimination. Similarly, making an employment decision based on the criteria of “Canadian experience” could also constitute discrimination. It must be shown that this criterion is rationally connected to the job being offered, and that no accommodation, short of undue hardship, could be made for a potential employee.

Race is often cited as a ground of protection in human rights complaints. For further information, discussion and examples of race discrimination see the following:

  • Responding to Incidents of Racism and Hate: A Handbook for Service Providers, developed by our Coalition.

In B.C., the grounds of Ancestry, Colour, Place of Origin and Race are protected in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising;
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership, or discriminating against a person or member);
  • services customarily available to the public (such as restaurants, stores, services provided by strata councils, schools and government programs);
  • publications;
  • tenancy; and
  • purchase of property.

Conviction

B.C.’s human rights legislation provides protection for people who have been convicted of a criminal or summary conviction offense, or a perceived conviction (i.e. arrest or stayed charges) that is unrelated to the employment or the intended employment of that person. For example, where a person applies for work at a saw-mill and has a conviction related to child molestation, it is unlikely the employer would be able to legally deny employment based on this conviction as no children are allowed on the employer’s worksite. However if the same applicant were applying for work that entailed working with children, the hiring decision could be influenced by this conviction without violating the Code . The Criminal Records Review Act requires all individuals covered by this Act to undergo criminal record checks as one means to safeguard the lives of children. The following link provides additional information as to the scope, process and administration of this Act.

In determining whether a conviction may or may not influence an employment decision, courts have indicated that the degree of ‘relatedness’ between the conviction and the work must be assessed. In Woodward Stores (British Columbia ) Ltd. v. McCartney, [(1983), 43 B.C.L.R. 314)], the Court considered the ‘relatedness to employment’ justification. Justice MacDonald discussed principles that employers should consider in making this determination and adopted a test that is often utilized by human rights adjudicators. At paragraph 318-319 Justice MacDonald states:

An employer must consider the circumstances of the conviction before concluding that the charge relates to the employment. Such factors as the details of the offence, the length of time intervening between the conviction and the employment decision, the employment history of the individual concerned, his age at the time of the offence and his efforts at rehabilitation must be considered.

The test adopted by Justice MacDonald at paragraph 319 follows:

•  Does the behaviour for which the charge was laid, if repeated, pose any threat to the employers’ ability to carry on its business safely and efficiently?

•  What were the circumstances of the charge and the particulars of the offence involved; e.g., how old was the individual when the events in question occurred, were there any extenuating circumstances?

•  How much time has elapsed between the charge and the employment decision? What has the individual done during that period of time? Has he shown any tendencies to repeat the kind of behaviour for which he was charged? Has he shown a firm intention to rehabilitate himself?

Applying these factors and basing a decision on them turns on the circumstances of each case. Legal advice from a lawyer specializing in employment law should be sought.

In B.C., protection on the basis of a conviction or a summary conviction only applies in the area of employment (hiring, firing, or terms and conditions of employment).

 

Disability - Physical or Mental

Disability is a protected ground in all areas covered by B.C.’s human rights legislation. Disability is not defined in the legislation but has evolved to include protection for people who have, or are perceived to have, mental or physical disabilities whether visible or non-visible, permanent (e.g., a visual or mobility impairment), or temporary (e.g., a treatable illness or temporary impairment which is the result of an accident).

Specific disabilities are not named in the statute allowing for a broad interpretation.  All major diseases and illnesses are included in the definition, such as cancer, Alzheimer’s, Crohn’s disease, cerebral palsy, epilepsy/seizures, heart attack, heart conditions, HIV / AIDS, arthritis, etc. All mental illnesses are included in the definition as are conditions associated with developmental delay and learning disabilities.

Drug and or alcohol dependencies are also included in the definition and in B.C., obesity is considered to be a disability.

Common conditions such as colds and the flu are not considered disabilities.

The duty to accommodate is well-established in case law and requires employers and service providers to accommodate special needs short of undue hardship, including those of people with disabilities. While employers and service providers have a legal duty to accommodate, those seeking accommodation also have a corresponding obligation to participate in finding an acceptable solution.

Many reference sources exist for understanding and addressing issues around disabilities and accommodating persons with disabilities. A sampling of online resources we often refer to includes:

In B.C., protection on the basis of disability - physical or mental, visible or non-visible, permanent or temporary - is provided in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising;
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership, or discriminating against a person or member);
  • services customarily available to the public (such as restaurants, stores, services provided by strata councils, schools and government programs);
  • publications;
  • tenancy; and
  • purchase of property.

Family Status and Marital Status

Family status typically refers to parent-child relationships but may also extend to other family connections such as those between siblings, in-laws, uncles or aunts, brothers and sisters, nephews or nieces, and cousins. Basing decisions on family connections or status, such as determining tenancy on the basis of whether someone has children or not, runs counter to human rights principles and should be avoided. Family status protection also applies in instances where discrimination is experienced as a result of being the parent or child of a particular person , or in instances where discrimination is experienced as a result of your membership to a particular group of persons (i.e. all children of the current workforce).

Marital status typically refers to relationships with a ‘spousal-like’ quality and protection extends to you regardless of what your status is (i.e. whether you are married, single, divorced, widowed, separated, or living common law). Stereotyping around someone’s particular status, such as “he’s divorced and therefore not stable enough to lead the organization”, runs counter to human rights principles. Marital status protection also applies in instances where discrimination is experienced as a result of your relationship with a particular person , or in instances where discrimination is experienced as a result of your membership to a particular group of persons (i.e. all divorced and separated persons in B.C.).

Family and marital status issues often overlap and may be cited jointly to characterize given situations. For example, where a single parent with three children has been denied rental accommodation based on a stereotypical comment such as ‘you’re not the right type for this property,’ this comment could be referring to marital status (being single in this case), to family status (having children in this case) or to both (being single with children). By citing both marital and family status you get a better characterization of the given situation.

To better illustrate how marital and family status protection extends to those connected to a particular person or to those who are members of a particular group of persons, the following summaries are provided:

In Fianza v. Ladco Investments Inc. [BCHRT (1999), 35 C.H.R.R. D/500] the employer dismissed Mr. Fianza less than one day after his brother quit without giving notice. The Tribunal found that the family connection between Mr. Fianza and his brother was at least one of the reasons the employer terminated him thereby bringing it under the ambit of family status discrimination.

The leading decision as to whether family and marital status protection extends to situations where discrimination is experienced as a result of a particular relationship comes from a case called B v. Ontario (Human Rights Comm.) [SCC 66 (2002), 44 C.H.R.R. D/1]. In this case, ‘A’ worked for a company owned by his brothers-in-law ‘B’ and ‘C’. When ‘A’s’ daughter and wife confronted ‘B’ with allegations of sexual abuse, ‘B’ fired ‘A’ from his job. The Supreme Court of Canada concluded that differential treatment as a result of a specific relationship between family members or between spouses does constitute family and martial status discrimination.

Discrimination as a result of group membership can also be considered under human rights law. In Brossard v. Quebec [SCC (1988), 10 C.H.R.R. D/5515], the Supreme Court of Canada ruled that employers’ nepotism policies, which adversely affect a particular group of people (family members of employees) also constitutes family status discrimination. As such, Canadian employers have had to re-assess and revise policies and procedures around family member employment.

In Thomson v. West Fraser Timber Co. [BCHRT 32 (2002), 44 C.H.R.R. D/137], the Tribunal ruled that a particular group of children (children not related to workforce members) were adversely affected by a summer hiring program that gave preference to children of its current workforce. Children in the community who were not related to members of the current workforce were at a substantial disadvantage as only 10% of affected jobs were reserved for them whereas 90% were reserved for children of the current workforce. Having shown an adverse affect, the Tribunal ruled that the program needed to be revised in order to open it up in a manner that was more equal for all children in the community.

In B.C., the grounds of Family and Marital Status are protected in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising;
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership, or discriminating against a person or member);
  • services customarily available to the public (such as restaurants, stores, services provided by strata councils, schools and government programs);
  • tenancy; and
  • publications.

Only Marital Status is protected in the area of purchase of property while Family Status is not. This means that condominiums may legally refuse ownership based on family status preferences (i.e. adult only buildings).

Political Belief

In B.C., protection from discrimination on the basis of political belief or affiliation is provided in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising; and
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership, or discriminating against a person or member).

Very few human rights cases have been determined on the grounds of political belief. However, as a general guideline, it’s best not to base employment or membership decisions on a person’s political belief unless you have a bona fide reason to do so. For example, where a person is applying to work for a particular political party, it would be reasonable for the employer to seek information about an applicant’s political affiliation. However where there is no direct correlation between the work and someone’s political affiliation it’s best not to ask the question.

Religion

Religious discrimination cases have aided in defining many of the key concepts and principles associated with human rights law in Canada today. Many situations have come before the courts and have involved matters of religious faith and beliefs as well as religious customs and practices.

In B.C., protection on the basis of your religion is provided in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising;
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership, or discriminating against a person or member);
  • services customarily available to the public (such as restaurants, stores, services provided by strata councils, schools and government programs);
  • publications;
  • tenancy; and
  • purchase of property.

The duty to accommodate is well-established in case law and requires employers and service providers to accommodate religious practices such as prayer, dietary and clothing requirements and religious holy days where doing so would not cause undue hardship. Generally the requirement sought must be a rule, a tenet, or a mandated practice of any given religion in order to legally activate the accommodation obligation. For example, Seventh Day Adventists and religious Jews are prohibited by religious law from working from sundown Friday to sundown Saturday. Because this is a tenet of their religion, employers have a legal obligation to activate an accommodation process for affected employees. Catholics however, while required to attend religious services, are most often able to do so without having to choose between their religion and their employment. Where a tenet or rule forces an individual to choose between their religion and their employment there is a duty to activate the accommodation process.

Sometimes a person’s religious beliefs may interfere with their ability to perform certain aspects of their job. In these cases, the same accommodation principles apply. For example in Moore v. British Columbia (Ministry of Social Services) [BCHRC (1992), 17 C.H.R.R. D/426], the employee was a practicing Roman Catholic who due to her faith, objected to abortion. Her employer disciplined and eventually fired her when she first rejected, and later refused to work with a client who sought a state-sponsored abortion. Because the employer knew of her objection to abortion and also knew that the objection itself was based in her religion, the Tribunal found that the employer ought to have accommodated her by transferring the client file and others like it to other employees. If confronted with similar situations, ask whether the belief is sincerely held, whether it is based in a religion, and whether it is the cause of the objection being made. If so, activate the accommodation process.

For further information on the duty to accommodate for religious beliefs, see the following:

Sex

Like many of the other grounds protected in human rights legislation, the scope of who is protected under the ground of sex has expanded over the years due to changing societal and legal awareness.

Today, protection from sex discrimination includes protection for males and females, protection against sexual harassment, protection against pregnancy discrimination, and more recently, protection against transgendered discrimination.

In B.C., protection from sexual harassment, sex, pregnancy and transgendered discrimination is provided in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising;
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership, or discriminating against a person or member);
  • services customarily available to the public (such as restaurants, stores, services provided by strata councils, schools and government programs);
  • publications;
  • tenancy; and
  • purchase of property.

Protection against lower rates of pay where male and female employees perform similar, or substantially similar, work is also available in B.C.

Here are a few sources that we often refer people to for more information pertaining to sex discrimination:

Sexual Orientation

Protection from discrimination on the basis of sexual orientation includes protection for gay men, lesbians, bisexuals, and heterosexuals.

In B.C., protection on the basis of your sexual orientation is provided in the areas of:

  • employment (hiring, firing, or terms and conditions of employment);
  • employment advertising;
  • membership in a trade union, employer’s organization, or occupational association (such as, excluding, suspending, or expelling from membership, or discriminating against a person or member);
  • services customarily available to the public (such as restaurants, stores, services provided by strata councils, schools and government programs);
  • publications;
  • tenancy; and
  • purchase of property.

For more information abut Sexual Orientation Discrimination and Homophobia, see the following:

Source of Income

By an amendment to the Residential Tenancy Act, source of income was added as a protected ground of discrimination in the area of rental housing in 1994. The right is enforced through the B.C. Human Rights Tribunal and means for example, that an apartment manager cannot refuse to rent to a person because their source of income is state sponsored (i.e. social assistance, disability pension, etc.).

In B.C. protection on the basis of your source of income is provided in the area of tenancy only.

 

Chart - Which Grounds are Protected in What Areas?

 

Retaliation 

Section 43 of the BC Human Rights Code states;

                            

A person must not evict, discharge, suspend, expel, intimidate, coerce, impose any pecuniary or other penalty on, deny a right or benefit to or otherwise discriminate against a person because that person complains or is named in a complaint, gives evidence or otherwise assists in a complaint or other proceeding under this Code.

As was noted in Bissonnette v. School District No. 62 and Frizzell, 2006 BCHRT 447 at para 22 in order to establish a complaint under s. 43 of the Code, a complainant must establish:

That a previous complaint has been made under the Code and that the respondent was aware of the complaint:

That the respondent engaged in or threatened to engage in retaliatory conduct; and

That the respondent intended to engage in that conduct or can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant: Talkkari v. City of Burnaby and others, 2005 BCHRT 68, at paras. 42-49;

 

In Cariboo Chevrolet Pontiac Buick GMC Ltd. v. Becker, 2006 BCSC 43, para. 47-55, the Court held that a previous complaint must be filed with the Tribunal in order to justify a retaliation complaint under s. 43. However, the Tribunal has held that there is no requirement under s. 43 that the Tribunal have accepted the complaint or delivered it to the respondent: see Swift v. B.C. (Ministry of Human Resources), 2007 BCHRT 67, paras. 42, 46 to 49, and 55.

In Entrop v. Imperial Oil Ltd. (No. 7) (1995), 23 C.H.R.R. D/213, (Ont. Bd. of Inquiry), a case involving complaints of harassment and reprisals, the Board held that it was required to examine the impact of the Company's behaviour on the complainant, and, if the complainant reasonably perceived the act to serve as retaliation for the complaint, this would serve as sufficient linkage between the actual or threatened prejudicial act and the enforcement of the person's rights under the [Human Rights] Code, without the requirement of proving any intention on the part of the respondent. The "reasonable person" or "reasonable human rights complainant" standard was not disturbed on appeal, although the appeal was allowed in part on other grounds. (30 C.H.R.R. C/433 (Ont. Ct. (Gen. Div.), 50 O.R. (3d) 18 (Ont. C.A)).

Notwithstanding s. 2 of the Code which provides that discrimination does not require an intention to discriminate, in Honey v. Coquitlam School District No. 43, [1999] B.C.H.R.T.D. No. 18, this Tribunal found that :

..a complainant could prove a violation of section 43 of the Code either by demonstrating that the respondent intended to engage in conduct described in that section, or that the respondent can be reasonably perceived as having intended to engage in such conduct.

In Honey v. Coquitlam School District No. 43, [1999] BCHRT No. 18., the Tribunal established the test for proving that a respondent retaliated against a Complainant by showing:

1. that he made a complaint under the Code against the respondent;

2. that the respondent was aware of the complaint; and

3. that the respondent intended or can reasonably be perceived as having

intended to engage in the conduct described in section 43.

Most recently, in Clarke v. Frenchies Montreal Smoked Meats Ltd., 2007 BCHRT 153, the Tribunal repeated the elements that must be proven, on a balance of probabilities, to establish that a complaint of retaliation is justified:

 

i) a previous complaint has been made under the Code and the respondent was aware of the complaint;

ii) the respondent engaged in or threatened to engage in retaliatory conduct; and

iii) the respondent intended to engage in that conduct or can reasonably have been perceived to have engaged in that conduct in retaliation, with the element of reasonable perception being assessed from the point of view of a reasonable complainant. (para. 129)

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