Human rights tribunals have been an invaluable tool for addressing the most overt forms of discrimination in Canada. (1) That said, their primary use has been to adjudicate individual claims of discrimination. (2) Generally speaking, these tribunals have been less effective in addressing ongoing, institutional patterns of discrimination. (3) This form of discrimination, known as systemic discrimination, remains difficult to identify and even harder to litigate, as the Ontario Human Rights Commission (OHRC) has recognized. (4) This article recognizes the benefits group litigation may offer in overcoming the particular challenges posed by systemic discrimination and proposes that amendments to human rights legislation facilitating the use of these procedural vehicles may well reduce barriers to these types of claims and improve outcomes in such cases.
I proceed in two parts. The first defines systemic discrimination and group litigation. Drawing from academic literature and case law in Canada and the United States, the bulk of the first part identifies barriers to litigating claims of systemic discrimination. Examining these in light of the benefits group litigation is said to offer, I hypothesize that where group litigation is available as a procedural vehicle, more claims of systemic discrimination will be filed, and there will be a greater incidence of positive outcomes for these claims.
The second part of this article tests this hypothesis through a comparative study. I survey the qualitative and quantitative outcomes of systemic discrimination claims before the Human Rights Tribunal of Ontario (HRTO), a tribunal without any formalized group litigation procedure, and the British Columbia Human Rights Tribunal (BCHRT), a tribunal that has adopted the "representative complaint" procedure, which allows for group litigation akin to class actions.
The results from this comparative study suggest that the availability of group litigation procedures such as the BCHRT's representative complaint may reduce barriers to entry and improve outcomes for systemic discrimination claims. On the other hand, the absence of formalized group litigation procedures appears to be associated with difficulties in litigating claims of systemic discrimination as a group or class, lower deterrence against systemic discrimination, and fewer protections for group or class members attempting to litigate these claims.
THE PROBLEM OF SYSTEMIC DISCRIMINATION
Systemic discrimination, otherwise known as structural, institutional, or second-generation discrimination, (5) has been defined by the Supreme Court of Canada in Action Travail des Femmes. This oft-cited passage describes systemic discrimination in the employment context as:
[D]iscrimination 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... 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) Systemic discrimination has also been described by the courts as "a continuing phenomenon which has its roots deep in history and in societal attitudes. It cannot be isolated to a single action or statement. By its very nature, it extends over time." (7) Defined by patterns or policies having a disproportionate impact on disadvantaged populations, (8) systemic discrimination is particularly difficult to discern. (9) For example, in Action Travail des Femmes, a claim of systemic discrimination having the effect of depriving women of equal employment opportunities was based on multiple policies and practices including indirect pressure, sexual harassment, stereotypes, and exclusion from workplace social relations. (10) The amalgam of such forces was found to amount to systemic discrimination.
While human rights tribunals in Canada have arguably been effective at adjudicating individual claims of discrimination (first-generation discrimination), (11) they have had some difficulty grappling with claims of discrimination of a systemic nature. This may be unsurprising, as human rights tribunals were originally developed to litigate first-generation discrimination cases. (12) The system now faces the challenge of adapting itself to respond to second-generation needs. Such adaptation is necessary if human rights tribunals are to achieve their statutory objectives. For example, the purposes of the British Columbia Human Rights Code are "to prevent discrimination" and "to identify and eliminate persistent patterns of inequality." (13) These preventative and broader societal objectives are only achievable by looking beyond discrimination as a micro-level phenomenon (14) and adapting current approaches to better address systemic issues. Insofar as structural barriers to litigating claims of systemic discrimination stand in the way of achieving these stated objectives, policymakers should develop creative solutions to overcome them.
ACCESS TO JUSTICE THROUGH GROUP LITIGATION
Group litigation, as a procedural vehicle, may be capable of mitigating the structural barriers inherent to the current system. Group litigation procedures --which I use as a generic term to designate procedural mechanisms allowing for the aggregation of legal claims--have existed for over one hundred years in English rules of court (15) but the normalization of their use and design under the guise of "class actions" only recently gained prominence through the work of the Ontario Law Reform Commission in 1982, (16) the drafting of the Class Proceedings Act, 1992, (17) and their jurisprudential recognition in Dutton in 2001. (18) A class action is "a lawsuit brought by one or more individuals (the "class representatives") on behalf of a group of persons similarly situated ("the class") to assert a common claim against the same defendant or group of defendants." (19) As Chief Justice McLachlin held in a widely quoted passage from Dutton, the class actions regime in Canada is intended to further three broad objectives: judicial economy, access to justice, and behaviour modification. (20)
Class actions were developed to remedy situations where, in the absence of this procedural vehicle, "the doors of justice [would] remain closed to some plaintiffs, however strong their legal claims." (21) Herein lies the central question in this article: can group litigation operate in this manner, that is to say, can it promote access to justice, with regards to claims of systemic discrimination? While group litigation may intuitively seem to be capable of this, the fact is that its availability before the statutory bodies created to adjudicate these claims varies considerably. This variation allows us to explore the above-identified research question by comparing the litigation of systemic discrimination claims across jurisdictions.
GROUP LITIGATION BEFORE HUMAN RIGHTS TRIBUNALS IN ONTARIO AND BRITISH COLUMBIA
The qualitative and quantitative comparative study found in the second part of this article limits its scope to claims before the HRTO and the BCHRT. It does so for two main reasons. First, Ontario and British Columbia have two of the most active human rights tribunals in Canada, each producing a large volume of decisions annually. This is important for ensuring the integrity of this article's quantitative analysis. Second, the legislatures in Ontario and British Columbia have chosen radically different approaches to group litigation. This stark contrast between the two systems allows for any correlation between the availability of formalized group litigation mechanisms and outcomes in systemic discrimination claims to be all the more evident. I briefly describe the relevant statutory framework in each province to provide the reader with some context.
The BC Human Rights Code allows the BCHRT to accept "representative complaints," pursuant to section 21(1) which provides that "[a]ny person or group of persons" may file a complaint with the tribunal. (22) The provisions clearly allow for public interest litigation put forward by unions or other public interest groups by providing that applications may be filed by a group or class, "whether or not the person filing the complaint is a member of that group or class." (23) When amending its legislation to make representative complaints available, the government of British Columbia acknowledged that class actions were "a very effective way for us to deal with systemic discrimination" and that the BCHRT would "now have meaningful remedies for discrimination in our system that may affect classes of people." (24)
To prevent this provision's abuse and to protect class members, the legislature provided the BCHRT with the discretion to refuse to accept a claim for filing on behalf of a group or class if "proceeding with the complaint is not in the interest of the group or class on behalf of which the complaint is made." (25) In interpreting these provisions, the BCHRT has sought to protect the interests of individual class members by drawing from class actions jurisprudence (26) in addition to developing its own parallel rules for accepting a representative complaint. (27)
Conversely, the Ontario Human Rights Code does not provide for a similar group litigation mechanism. Rather, it provides a complex and, as will be demonstrated, infrequently used, patchwork comprised of three procedural vehicles, none of which were meant to act as a veritable group litigation mechanism: the lead case, the joint hearing, and the section 34(5) application. In applying these mechanisms, the HRTO has not drawn on class actions jurisprudence to ensure that...