Postcards from O'Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter

• Author: Leslie A. Reaume
• Pages: 373-408

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Postcards from O’Malley:

    

      

Leslie A. Reaume1

A. INTRODUCTION

e O’Malley decision, released by the Supreme Court of Canada in ,

is one of the cornerstones of statutory human rights interpretation in Can-

ada. Twenty years a er its release, it remains the denitive statement on

the shii ng evidentiary burdens b orne by parties i n the adjudication of a

statutory human rights claim, including the vital concept of the prima facie

case. e decision i n O’Malley also resulted in the progression of other

important substantive equality principles: emphasizing the broad public

policy reected in the purpose of the enabling statute; shiing the focus

from the purpose of an impugned r ule to its eect: a rming prior nd-

ings that motive or intent to discriminate was not an evidentiary require-

ment in construing statutory human rights violations. Whi le the Supreme

Court of Canada has yet to supplant this important decision, human rights

tribunals and courts have eectively taken on this task. Together they have

contributed to a patchwork of decisions across a new jurisprudential land-

scape where O’Malley has retreated to the background while the Charte r

and its attendant analytical concepts have slid into the foreground.

is paper explores one of the important developments in statutory hu-

man rights jurisprudence which has consequences for t he development of

substantive equality theory and practice: the import, into statutory adju-

dications, of the Charter decision in Law v. Canada (Minister of Employ-

ment and Immigration). e range of potential consequences depends on

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      

what is i mported from Law and how those concepts are applied in statu-

tory human rights adjudications. As is disc ussed in greater detail below,

Law appears in the statutory huma n rights context on a continuum. On

the one end is the recognition of the i nterplay bet ween the Charter and

provincial and federal human rights instruments which does not result in

the principles from Law dominating the statutory analysis. On the other

end is the wholesale application of t he three-stage analysis from Law, in-

cluding the inquiry into the eect of the impugned ru le or conduct on the

claimant’s dig nity. e closer a stat utory adjudicator moves to the latter

end of the spectrum, the more dominant the Charter analysis becomes and

the g reater the potential for adverse consequences. Among the most im-

portant of those consequences is the potential for an elevated burden on

a human rights cl aimant which eectively supplants the more appropriate

evidentiary principles articulated in O’Malley. is is of particular concern

when only a small fraction of the complaints led with human rights com-

missions result in a public hearing, limiting the possibilities for evolving

the jurisprudence in this important emerging area of law.

Allowing interpretive elements associated with Law to dominate a stat-

utory human rights ana lysis changes how statutory human rights adjudica-

tions unfold. It d iverts the attention of decision-makers from the langua ge

of the enablin g statute, the principle s which have evolved throug h statutory

human rights adjudications, the regulatory context in which statutory hu-

man rights al legations arise, the intent of the framers of the legislation, and

the quasi-constitutional nature of human rights. Although some statutory

cases certainly cross over into the realm of constitutionally-protected rights

in the sense that they could be a djudicated under either instrument, statu-

tory human rights are not constitutionally entrenched and they require the

appropriate contextual interpretation to give life to the va lues which under-

lie them. Provincial and federal politicians framed human rights legislation

in a manner which provides broad public access to remedies for both private

and public sector forms of discrimination which are not contemplated by

the Charter in the service, accommodation, facilities, and employment are-

nas. It is not suggested here that statutory human rights claims are inferior,

but they are contextually dierent from Charter cla ims.

Principles developed in the Charter context can be given consideration

in the adjudication of human rights complaints. Indeed there is a relation-

ship between t hese two equality rights instruments which can enrich the

development of jurisprudence in both contexts.

eleven• ’    

e interplay between the Charter a nd statutory human rights instru-

ments, wh ich began with the analysis of discrimination i n Andre ws, is

examined in more detail later in this paper, as is the question of the appro-

priate limits on borrowing concepts from one context to another. Simply

put, borrowing from t he Charter context to the statutory context is ap-

propriate so long as the exercise enriches the substantive equality analysis,

is consistent with the li mits of statutory interpretation and advances the

purpose and quasi-constitutional status of the enabling stat ute. e objec-

tion raised in this paper is not to the interplay but to the manner in which

Charter principles, specically those articu lated in the decision in Law,

are imported and then a llowed to dominate an analysis which should be

driven rst by the principles of statutory interpretation, and second by the

jurisprudence which has developed specically in the regulator y context.

Statutory human r ights jurisprudence has its roots in both the principles

of statutory interpretation and the broader public policy principles associ-

ated with human rights which are oen expressly articulated in the enabling

legislation. Purposes and preambles are replete with language draed in the

broadest imaginable public policy terms, such as the purpose of the Canadian

Human Rights Act which references “equality of opportunit y” for individuals

to “make for themselves the lives that they are able and wish to have”; the

preamble to the Human Rights, Citizenship and Multiculturalism Act, which

provides “that all A lbertans should share in a n awareness and appreciation of

the diverse racial a nd cultural composition of society and t hat the richness of

life in Alber ta is enhanced by sharing that diversity”; the British Columbia

Human Rights Code (BCHRC) which articulates as one of its purposes “to

foster a society in British Columbia in which there are no impediments to full

and free participation in the economic, social, political and cultural life of Brit-

ish Columbia.” Contrast these public policy statements with the policy state-

ment implicit in the limited entitlements under section () of the Charter

to “equality before and u nder the law” and the right to “equal protection and

equal bene t of the law;” high lighting , again, the importance of context to de-

liberations which take place under these two important equality instru ments.

Apart from the sh i in the complainant’s evidentiary burden, reliance

on Law creates a number of other problems in the statutory human rights

context, al l of which are addressed in g reater detail later in t he paper. It

introduces, for example, an i mproper method for “screening” complaints

in circumstances where a human rights commission employs the test to de-

termine whether a case merits public inquiry by a huma n rights tribunal.