S(7)     (1)     A person, directly or indirectly, alone or with another, by himself or herself or by the interposition of another, shall not

(a) deny to a person or class of persons occupancy of a commercial unit or a self-contained dwelling unit; or

(b) discriminate against a person or class of persons with respect to a term or condition of occupancy of a commercial unit or a self-contained dwelling unit

by reason only of the race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability of that person or class of persons.

(2)     Notwithstanding subsection (1), a limitation, specification, exclusion, denial or preference because of physical or mental disability shall be permitted if that limitation, specification, exclusion, denial or preference is based upon a good faith qualification as determined by the Commission.

SYNOPSIS

Section 7(1) prohibits a person either acting with another, or alone, from discriminating on the basis of the prohibited grounds with respect to the occupancy of a commercial unit or a self-contained dwelling unit. The terms "commercial unit" and "self-contained dwelling unit" are defined in section 2 of the Code. The section highlights a protection against discrimination which arguably exists under section 6(1).

Section 7(2) permits discrimination on the basis of physical disability or mental disability with respect to the occupancy of self-contained dwelling units or commercial units if there exists a good faith reason for the discrimination as determined by the Commission. It is important to note that the Commission has the mandate of determining whether the discrimination is based on a good faith reason. This is contrary to the general scheme of the Code which mandates that boards of inquiry are to determine when discrimination occurs and whether the defences outlined in the Code are available to employers and service providers.

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S(8) A person, directly or indirectly, alone or with another, by himself or herself only or by the interposition of another, shall not harass a person or class of persons who is an occupant of a commercial unit or a self-contained dwelling unit because of the race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability of that person or class of persons.

 

Section 8 prohibits a person from directly or indirectly harassing a person or class of persons who is an occupant of a commercial unit or a self-contained dwelling unit because that person or class of persons is characterized by a prohibited ground of discrimination.

See section 2 for definitions of "harass", "commercial unit" and "self-contained dwelling unit". The annotations to section 2 amplify the definition of "harass". See section 12 for a discussion of harassment in an establishment and reference the annotated glossary for a discussion about sexual harassment.

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S(9)     (1)     An employer, or person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment because of

(a) that person's race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical or mental disability; or

(b) that person's age, if that person has reached the age of 19 years and has not reached the age of 65 years,

but this subsection does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.

            (2)      An employer, or a person acting on behalf of an employer, shall not use, in the hiring or recruitment of persons for employment, an employment agency that discriminates against persons seeking employment because of their race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability.

            (3)      A trade union shall not exclude a person from full membership or expel or suspend or otherwise discriminate against one of its members or discriminate against a person in regard to his or her employment by an employer, because of

(a) that person's race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability; or

(b) that person's age, if that person has reached the age of 19 years and has not reached the age of 65 years.

          (4)      A person shall not use or circulate a form of application for employment or publish an advertisement in connection with employment or prospective employment or make a written or oral inquiry in connection with employment that expresses either directly or indirectly

(a) a limitation, specification or preference as to race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability; or

(b) an intent to

(i) dismiss from employment,

(ii) refuse to employ or rehire, or

(iii) discriminate against

a person because of age, if that person has reached the age of 19 years and has not reached the age of 65 years,

but this subsection does not apply to the expression of a limitation, specification or preference based on a good faith occupational qualification.

(5)     Notwithstanding subsection 9(1), the provisions of subsections (1), (3) and (4) as to age shall not apply to

(a) termination of employment because of the terms or conditions of a good faith retirement or pension plan;

(b) operation of the terms or conditions of a good faith retirement or pension plan which have the effect of a minimum service requirement; or

(c) operation of the terms or conditions of a good faith group or employee insurance plan.

(6) This section does not apply to an employer

(a) which is an exclusively religious, fraternal or sororal organization that is not operated for private profit; or

(b) in respect of the employment of a domestic employed and living in a single-family home.

SYNOPSIS

Section 9 prohibits discrimination in employment on the basis of the listed prohibited grounds. The section starts with a blanket prohibition against discrimination and then proceeds to outline a number of exemptions or defences which permit discrimination in specific situations.

Section 9(1) states that an employer or a person acting on behalf of an employer shall not discriminate on the basis of the prohibited grounds in recruiting and terminating persons and in dealing with persons with respect to employment. The section lists age as a prohibited ground of discrimination for persons between the age of 19 to 65 inclusive. The section does not apply to an employment rule or practice that is based on a good faith occupational qualification. Most other jurisdictions in Canada have a similar exemption but instead of referring to a good faith occupational qualification they use the phrase "bona fide occupational qualification". The terms are synonymous.

This section has been extensively interpreted and commented upon by the Supreme Court of Canada. Many of the relevant cases are discussed below or referred to in the annotated glossary. The effect of the case law is to establish a body of legal principles dealing with discrimination in employment and unfortunately many of these principles cannot be gleaned from a casual reading of the section.

The law currently recognizes two types of discrimination. Direct discrimination occurs when an employment rule directly discriminates on the basis of a prohibited ground of discrimination. A rule that says no persons of colour are to be hired directly discriminates on the basis of race. A rule that says airline pilots must have a vision acuity of 20/20 discriminates on the basis of physical disability for those who are sight impaired. In cases of direct discrimination, the employer is entitled to establish that the employment rule or practise is a good faith occupational qualification. To do so the employer must show that the rule or practise was implemented in good faith and that it is rationally connected

or reasonably required for the performance of the job. Airlines usually can establish that the requirement that pilots have 20/20 vision is reasonably necessary or rationally connected to the safe operation of air planes and thus can successfully rely upon the good faith occupational defence. An employer cannot establish that a "no persons of colour employed here" rule is rationally connected or reasonably necessary for any type of work. See the annotated glossary for a discussion of good faith occupational qualifications.

A second type of discrimination is referred to as adverse effect discrimination. It occurs when an employment rule is neutral on its face, that is, it does not target persons characterized by the prohibited grounds of discrimination, but the rule has the effect of discriminating against those persons. For example, an employment rule which states that employees have to work on Friday nights does not directly discriminate, however, that rule adversely effects persons of the Seventh Day Adventist Church because their religious beliefs prohibit working on Friday nights. Likewise, an employment rule which states that employees must attend work from 8:00 a.m. to 5:00 p.m. will adversely effect persons who cannot attend work during those hours because of their disabilities. In cases of adverse effect discrimination the employer has a defence if it can establish that it accommodated the employee to the point of undue hardship. See the annotated glossary for a discussion of the duty to accommodate.

Section 9(2) prohibits an employer or a person acting for an employer from using an employment agency to discriminate in the hiring or recruitment of individuals based on the prohibited grounds.

Section 9(3) prohibits a trade union from discriminating on the basis of the prohibited grounds with respect to its members.

Section 9(4) prohibits people from circulating or publishing advertisements, applications or inquiries which discriminate or intend to discriminate in employment based on the prohibited grounds.

The prohibition against discrimination in employment on the basis of age as outlined in subsections (1), (3) and (4) does not apply; a) to the termination of employment because of the provisions of a good faith pension plan, b) to employment rules establishing a minimum service requirement for good faith retirement or pension plans, and c) the provision of a good faith group or employee insurance plan.

Section 9(6) exempts employers from the prohibitions as contained in section 9 if they are exclusively religious, fraternal or sororal organizations that are not operated for profit or in respect of the employment of a domestic in a single-family home.

See the annotated glossary for a discussion about "employment", "pregnancy" and "sexual harassment".

ANNOTATIONS

In Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. (1985) 7 C.H.R.R. D/3102 the Supreme Court of Canada outlined the distinction between direct and indirect discrimination. The Court stated it had been established that:

direct discrimination occurs ... where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "no Catholics or no women or no blacks employed here" ... On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule of standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.

In Alberta (Human Rights Commission) v. Central Alberta Dairy Pool (1990) 12 C.H.R.R. D/417, the Supreme Court of Canada confirmed the consequences that follow a finding of direct discrimination as opposite to a finding of adverse effect discrimination. It stated:

The duty in a case of adverse effect discrimination ... is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer. Cases such as this raise a very different issue from those which rest on direct discrimination. Where direct discrimination is shown the employer must justify the rule, if such a step is possible under the enactment in question, or it is struck down. Where there is adverse effect discrimination ... the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general workforce which must be considered. In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification: what is required is some measure of accommodation. The employer must take reasonable steps towards that end which may or may not result in full accommodation. Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part ... must either sacrifice his religious principles or his employment.

 

In Janes v. Newfoundland (Minister of Justice) (1992) 17 C.H.R.R. D/511 a board of inquiry ruled that Mr. Janes was discriminated against by being refused a position as a correctional officer in the Newfoundland and Labrador Correctional Centre for Women because of his sex. The board found that being a female at that facility was a bona fide occupational qualification only to the extent that it ensures that inmate searches are conducted by a person of the same sex. The board found that the Centre could have developed a staff gender ratio which would ensure that female prisoners are kept in the intimate care and charge of a female officer. The board ordered the Centre to develop such a staff gender ratio.

In Sacrey v. United Food and Commercial Workers’ Local No. 1252 (1988) 9 C.H.R.R. D/4981 a board of inquiry found that two female complainants were discriminated against by reason of their sex when they were denied permission to sell their catch of caplin to a fish plant because the respondent union had not included them on a list of bona fide fishermen which was forwarded to the plant.

In Dawe v. Newfoundland Liquor Corporation (1998) 31 C.H.R.R. D/259 a former R.C.M.P. officer applied for the position of Liquor Control Inspector with the respondent. A reference check revealed Mr. Dawe might have a back problem. He was advised that if he was offered a position it would be on the condition that he undergo a medical. The evidence tendered before the board of inquiry revealed that the job application did not require candidates to pass a medical examination. Other candidates were not subjected to the requirement to undergo a medical. Mr. Dawe became upset at the request and the respondent refused to consider Mr. Dawe for the position because of his reaction to the request. The board ruled that the request of Mr. Dawe to undergo a medical examination, in the absence of any evidence which would establish a good faith occupational qualification, was discriminatory. Further, the respondent could not rely upon Mr. Dawe’s response to a discriminatory request to exclude him from the job competition. The board, pursuant to section 20(2), dismissed Mr. Dawe’s complaint because it was filed later than six months after the discrimination occurred.

A trilogy of decisions commenting upon the vision standard to be used by Sheriff’s Officers employed by the Newfoundland Department of Justice illustrates, among other things, the difficulties of establishing a good faith occupational qualification. In Hanlon and Lewis v. Newfoundland (Minister of Justice) (1993) 23 C.H.R.R. D/487 two candidates were disqualified from a job competition for the position of Deputy Sheriff. Both failed to meet the vision acuity standard set for the position by the respondent. The board found that the vision acuity standard set by the respondent was not a bona fide occupational qualification because it was the same standard as set for police officers, yet the requirements of both jobs were different. The respondent could not establish that this standard was necessary for the efficient and economical performance of the job. Deputy Sheriffs did not perform the same duties or encounter the same risks as police officers.

The Department of Justice appealed the board’s decision but on the date set for its hearing, abandoned the appeal and announced a new vision standard. Hanlon and Lewis could not meet the new standard and filed a second complaint with the Commission. In Hanlon and Lewis v. Newfoundland (Minister of Justice) No. (2) (1996) 30 C.H.R.R. D/127 the board of inquiry ruled that the new vision standards were more stringent than the standard set for police officers and therefore did not constitute a bona fide occupational qualification for the position of deputy sheriff.

The Department of Justice appealed the board’s decision and on the date set for the hearing of the appeal abandoned same and announced a third vision standard. The presiding judge, with the consent of the parties, ordered a trial to determine what was an appropriate standard. In Department of Justice v. Hanlon, Lewis (1996 unreported) the Newfoundland Supreme Court, Trial Division, set an aided vision acuity standard as proffered by the Department of Justice. It also ruled that there was no justification for a vision standard based on candidates’ sight without the use of visual aides. This decision is currently on appeal to the Court of Appeal.

In Michelle Jones v. Gloria Companion et al (1997 unreported) a Newfoundland board of inquiry considered a complaint by a former employee of a committee established to take care of a developmentally delayed adult. Michelle Jones was a live-in supervisor at the residence for the disabled adult. Ms. Jones developed a mental illness and left work. She availed of her vacation time to recoup. On the advice of her doctor she remained off work for approximately three weeks after her vacation. The live-in supervisor position was assumed by another employee familiar with the disabled adult and the employer was not subjected to extra expense because of Ms. Jones’ absence. The board of inquiry ruled that the employer, by firing Ms. Jones for failure to attend work because she was off for approximately three weeks, had not accommodated Ms. Jones’ mental illness to the point of undue hardship. The decision is currently under appeal.

        S(10)    (1)      An employer, or a person acting on behalf of an employer, shall not refuse to employ or to continue to employ or otherwise discriminate against a person in regard to employment or a term or condition of employment because of that person’s pay

(a) from another or previous employer having been; or

(b) from him or her or another employer being or becoming subject to

(c) attachment or seizure in satisfaction of a claim against; or

(d) alienation, assignment or transfer by

that person, but discrimination based on a good faith occupational qualification with respect to persons whose duties include the collecting, receiving or depositing of money belonging to the employer does not constitute a failure to comply with this subsection.

        (2)     An employer, or a person acting on behalf of an employer, shall not use, in the hiring or recruitment of persons for employment, an employment agency that discriminates against persons seeking employment for a reason that would be, in regard to an employer or person acting on behalf of an employer, discrimination under subsection (1).

        (3)     A trade union shall not exclude a person from full membership or expel or suspend or otherwise discriminate against a member or discriminate against a person in regard to his or her employment by an employer for a reason that would be, in regard to an employer or a person acting on behalf of an employer, discrimination under subsection (1).

        (4)     A person shall not use or circulate a form of application for employment or publish an advertisement in connection with employment or prospective employment or make a written or oral inquiry in connection with employment that expresses either directly or indirectly

(a) a limitation, specification or preference as to a person; or

(b) an intent to

(i) dismiss from employment,

(ii) refuse to employ or retire, or

(iii) discriminate against

a person

for a reason that would be, in regard to an employer or a person acting on behalf of an employer, discrimination under subsection (1).

(5)     This section does not apply to an employer in respect of the employment of a domestic employed and living in a single-family home.

SYNOPSIS

Section 10(1) is an anomaly with respect to the general anti discrimination based on the prohibited grounds framework of the Code. It states that an employer shall not discriminate against an employee or prospective employee because his or her wages are subject to attachment or assignment. Generally the law of debtor/creditor permits persons who have certain claims against an individual to attach or seize that individual’s wages to satisfy the claim or debt. For example, spouses who fail to pay child support payments as ordered by a Court may find their wages attached to satisfy the outstanding balance under the order. Section 10(1) prohibits an employer from discriminating against an employee who is having his or her wages seized. The provision permits a defence of a good faith qualification for discrimination in this regard if the employee is responsible for the handling of money, presumedly because the fact his or her wages are being attached is evidence of a tendency to be derelict in dealing with financial matters.

Section 10(2) states that an employer cannot avoid liability under section 10(1) by using an employment agency to undertake the discrimination prohibited in section 10(1) with respect to recruitment.

Section 10(3) prohibits a trade union from discriminating in the manner prohibited by section 10(1).

Section 10(4) prohibits a person from articulating a desire to discriminate in the manner prohibited by section 10(1).

Finally, section 10(5) states that the protection against discrimination as outlined in section 10(1) does not apply to domestics employed and living in a single family home. Note that in order to avail of this section, the domestic must not only work but also live in the home.

S(11)     (1)     An employer, or a person acting on behalf of an employer, shall not establish or maintain differences in wages between male and female employees employed in the same establishment who are performing, under the same or similar working conditions, the same or similar work on jobs requiring the same or similar skill, effort and responsibility, except where that payment is made under

(a) a seniority system; or

(b) a merit system.

(2)     A female employee employed in the same establishment as a male and who is performing under the same or similar working conditions, the same or similar work on jobs requiring the same or similar skill, effort and responsibility shall have

(a) opportunities for training and advancement; and

(b) pension rights and insurance benefits

equal to those applicable to the male.

(3)     An employer shall not reduce the wages of a male or female employee in order to comply with subsection (1).

SYNOPSIS

Section 11(1) prohibits an employer from establishing or maintaining a different pay scale for males and females doing similar work. To establish a breach of section 11(1) one must establish that (a) males and females are paid different wages; (b) they work in the same establishment; (c) they are performing under the same or similar working conditions; and (d) they are doing similar work or jobs requiring similar skill, effort and responsibility. An employer can avoid liability if it can establish that the different wage scale for males and females in use is in conformity with a seniority or merit system.

The provisions of section 11(1) are to be contrasted with legislation provisions in other jurisdictions which prohibit paying males and females different wages for work of equal value. This type of provision requires a comprehensive analysis of the work performed by males and females to assess the relative value of each. The analysis focuses on the effect of the work done by males and females as opposed to the "skill effort and responsibility" of the employees performing that work.

Section 11(2) prohibits employers from denying female employees certain employment benefits like training, promotion and pension and insurance benefits where they perform the same or similar work as men.

Section 11 (3) prohibits an employer from lowering an employee’s wages to conform with the provisions of section 11(1). Without the protection afforded by section 11(3) unscrupulous employers, when facing a claim that males and females are being paid unequally for performing equal work, could lower the pay of the higher paid gender.

See section 2 for the definition of "establishment" and reference the annotated glossary for a discussion of the term "employment".

S(12)     A person in an establishment shall not harass another person in the establishment because of the race, religion, religious creed, sex, sexual orientation, marital status, physical disability, mental disability, political opinion, colour or ethnic, national or social origin of that person.

SYNOPSIS

Section 12 prohibits harassment in an establishment based on the prohibited grounds. The section does not limit the type of relationship covered by the prohibition to employers and employees, therefore, harassment of a co-worker or a co-patron is prohibited.

See section 2 for definitions of "harass" and "establishment". The annotations to section 2 amplify the definition of "harass". See section 8 for a discussion of harassment in commercial units and self-contained dwelling units and reference the annotated glossary for a discussion about sexual harassment.

ANNOTATIONS

In Matthews v. Memorial University of Newfoundland (1991) 15 C.H.R.R. D.399, a Newfoundland board of inquiry found that the Respondent University harassed Mr. Matthews in an establishment because of a condition classified as a mental disability, his speech impediment. The board found the University liable when its officials made written comments in Mr. Matthews file about his speech impediment while he was a medical student which were vexatious and not related to his ability to perform his duties. The Respondent University’s appeal to the Supreme Court of Newfoundland was dismissed; see Memorial University of Newfoundland v. Matthews (1994) 22 C.H.R.R. D.384.

S(13)  (1)     A person who is in a position to confer, grant or deny a benefit or advancement to another person shall not engage in sexual solicitation or make a sexual advance to that person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.

            (2) A person who is in a position to confer or deny a benefit or advancement to another person shall not penalize, punish or threaten reprisal against that person for the rejection of a sexual solicitation or advance.

SYNOPSIS

Section 13 prohibits a person in a position to confer or withhold a benefit to another from engaging in sexual solicitation or in undertaking sexual advances which the person in authority knows, or ought reasonably to know, is unwelcome.

Section 13(1) is not limited to the employment context, thus sexual solicitation and advances are prohibited in a variety of relationships subject to the conditions that, (a) the advances are known or ought reasonably to be known to be unwelcome, and (b) the alleged perpetrator is in a position to confer a benefit to the target of the solicitation and advances.

See the annotated glossary for a discussion of sexual harassment.

ANNOTATIONS

In Barnes v. Thomas Stratton Warehousing Co. Inc. (1993) 22 C.H.R.R. D.427, a Newfoundland board of inquiry expanded upon the term sexual solicitation when it stated:

Within Webster’s Dictionary, 9th ed., defined "solicitation" to mean the practice or an act of strongly urging, enticing, propositioning, etc. "Advance" is defined to mean to bring forward for notice, consideration or acceptance. After considering their natural meaning I consider these terms to mean a practice, act or approach directed to another person which could be expressly or impliedly made th[r]ough comments or conduct thereby seeking some specific goal.

A sexual solicitation or sexual advance would therefore mean such comments or conduct which would expressly or impliedly infer that sexual favours are being sought by the person making the solicitation or advance.

The board of inquiry went on and found that a supervisor’s promises to a female employee of a trip to New Brunswick with the possibility of a job there, coupled with statements like "You won’t get anywhere if you don’t screw", amounted to sexual solicitation.

S(14) (1)     A person shall not

(a) publish or display; or

(b) permit to be published or displayed on lands or premises or in a newspaper, through a radio or television broadcasting station or by means of another medium which he or she runs or controls

a notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against a person or a class of persons because of the race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability of that person or class of persons.

        (2)     Nothing in this section interferes with the free expression of opinions upon a subject by speech or in writing.

 

SYNOPSIS

Section 14(1) prohibits a person from publishing, displaying, broadcasting or otherwise disseminating notices, signs, symbols and emblems indicating discrimination or an intention to discriminate against persons or a class of persons characterized by a prohibited ground of discrimination.

Section 14(2) states that section 14(1) does not interfere with the freedom of expression upon a subject in speech or in writing.

Section 2(b) of the Charter of Rights and Freedoms states that everyone has the fundamental freedom of "thought, belief, opinion and expression, including freedom of the press and other media of communication." One commentator has suggested that provisions like section 14(2) are superfluous, "... unless it is intended merely as an indication to Human Rights Commissions that it is necessary to balance, on the one hand, the importance and the seriousness of the communication and, on the other hand, its effect on discrimination against these groups protected by the legislation." (see Discrimination and The Law, Tarnopolsky and Pentney, Carswell Publications, loose-leaf service).

ANNOTATIONS

In Warren and Chapman v. Manitoba Human Rights Commission (1985) 6 C.H.R.R. D.2777, the Manitoba Court of Appeal rejected the argument that the use of the word "representation" as found in section 14(1), should be given a broad definition and declared that the term is limited to its meaning as an image, likeness or reproduction.

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