Human Rights Law and Employment: Does Context Trump Relationship?

• Author: McKay-Panos, Linda
• Position: HUMAN RIGHTS LAW

Human rights legislation across Canada has similarities and differences. Most legislation covers discrimination in specific contexts (such as services customarily available to the public) and membership in professional associations or trade unions, or relationships (such as employment or landlord and tenant). Many also cover statements made in public. People are often protected from discrimination on grounds which include race, religious belief, gender, colour, ethnicity, sexual orientation, disability (mental and physical), age and the like. The wording of various statutory provisions is similar but not identical between jurisdictions. The varying interpretations given by the courts and human rights tribunals to the statutory provisions has led to a very complicated set of cases and principles on employment and discrimination.

Human rights legislation has acquired the status of "quasi-constitutional": this is paramount or dominant law, which applies to all other statutes in the jurisdiction, and it can supersede or trump contradictory laws. For example, subsection1(1) of the Alberta Human Rights Act ("AHRA") reads: "Unless it is expressly declared by an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act." Categorizing human rights legislation as quasi-constitutional allows other legislation to be broadly interpreted in order to align with the purposes of human rights law.

Statutes also need to be interpreted under the modern principles of statutory interpretation. As stated by E.A. Driedger, in Construction of Statutes, "there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

Recent developments in human rights law, in the employment context in particular, suggest that the differences in wording between statutes may actually matter. Various human rights laws across Canada all prohibit discrimination against employees both at the hiring stage and during the course of employment. While some of the laws include definitions of "employer" or "employment", others rely on judicial interpretations of these terms. Some human rights laws on discrimination in employment provide that "no person" shall discriminate. Others...