anti-discrimination law part ii

RECENT DEVELOPMENTS INCANADIAN LAW: ANTI-

DISCRIMINATION LAW PART II

Russell G. Juriansz*

I. INTRODUCTION ................................................... 668

11. EQUAL PAY ....................................................... 668

A. General Discussion ...................................... 668

1. Equal Pay for Equal Work ......................... 669

2. Equal Pay for Similar or SubstantiallySimilar W ork ........................................ 669

3. Equal Pay for Work of Equal Value .............. 669

4. Pay Equity ........................................... 670

B. Manitoba's Pay Equity Act ............................. 671

C. Ontario's Pay Equity Act, 1987 ........................ 672

D. New Federal Guidelines ................................. 674

III. AFFIRMATIVE ACTION ............................................ 676

A . The A.TF. Case .......................................... 676

B. The Employment Equity Act ............................ 684

C. The Federal Contractors Program ..................... 685

IV. SYSTEMIC DISCRIMINATION AND STATISTICS ................... 686

V. BONA FIDE OCCUPATIONAL REQUIREMENTS .................... 697

A. Personal Privacy and Dignity .......................... 697

* Of the Bar of Ontario.

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B. Customer Preference .................................... 700

C. Public Safety .............................................. 702

VI. PREGNANCY AND SEX DISCRIMINATION ........................ 705

VII. INCITEMENT TO DISCRIMINATION ............................... 709

VIII. PRACTICE AND PROCEDURE ..................................... 715

IX . CONCLUSION ..................................................... 721

I. INTRODUCTION

The present survey of anti-discrimination law is lengthy because ofthe immense development that has occurred in this area. Certainly, themost significant development has been the coming into force of section15 of the Charter of Rights and Freedoms.I Also important were theSupreme Court of Canada's decisions in Ontario Human Rights Comm'nv. Simpsons- Sears Ltd. 2 and Bhinder v. C.N.R. 3 These two decisions,and the relationship of the human rights codes to section 15 of the Charter,and the recent jurisprudence relating to procedural fairness in humanrights proceedings, as well as in the area of sexual harassment, werereviewed in Part I of this survey.4

Part II continues the review of developments relevant to humanrights legislation.

II. EQUAL PAY

A. General Discussion

In the last two years, there have been important legislative andadministrative developments in the area of equal pay.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B of the Canada Act 1982 (U.K.), 1982, c. I 1 [hereinafter Charter].

2 (1985), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321 [hereinafter O'Malley].3 (1985), [1985] 2 S.C.R. 561, 23 D.L.R. (4th) 481 [hereinafer Bhinder].4 R.G. Juriansz, Recent Developments in Canadian Law: Anti- Discrimination

Law Part 1 (1987) 19 OTTAWA L. REV. 447.

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Legislation designed largely to protect women from pay discrimi-nation has evolved through four distinct phases:

1. Equal Pay for Equal Work

This principle requires that male and female employees be paid thesame wage for doing identical work. Thus a waiter and a waitress mustbe paid the same wage. Legislation embodying this principle exists inevery provinces except New Brunswick.

2. Equal Pay for Similar or Substantially Similar Work

This principle applies to situations where male employees and femaleemployees may have different job titles, but perform substantially thesame work. This type of legislation also exists in every province6 exceptNew Brunswick and has been commonly applied to compare nurses'aides to orderlies, and male janitors to female cleaners.

For example, the Canadian Human Rights Commission awarded 470female federal government librarians equalization adjustments rangingfrom $500 to $2,500 annually, plus back pay of up to $5,900 each, aftercomparing their jobs with those of historical researchers who were pre-dominantly male.7

3. Equal Pay for Work of Equal Value

This concept differs radically from the two preceding in that it doesnot compare "work", but the "value" of work. Value is determined by

5 Individual's Rights Protection Act, R.S.A. 1980, c. 1-2, s. 6; Human RightsAct, S.B.C. 1984, c. 22, s. 7; Employment Standards Act, R.S.M. 1970, c. El 10, asam. S.M. 1975, c. 20, s. 6; C.C.S.M. El 10, s. 40; Newfoundland Human Rights Code,R.S.N. 1970, c. 262, s. 10, as am. S.N. 1974, No. 114, s. 6; Labour Standards Code,S.N.S. 1972, c. 10, s. 55, as am. S.N.S. 1976, c. 41, s. 9; Employment StandardsAct, R.S.O. 1980, c. 137, s. 33; Human RightsAct, S.P.E.I. 1975, c. 72, s. 7; Charterof Human Rights and Freedoms, R.S.Q., c. C-12, s. 19; Labour Standards Act, R.S.S.1978, c. L-1, s. 17.

6 This requirement is contained in the same provisions as are listed ibid. Thewording of these provisions varies, but a typical example proscribes wage differentiationbetween male and female employees "for substantially the same kind of work performedin the same establishment, the performance of which requires substantially the sameskill, effort and responsibility" (Employment Standards Act, R.S.O. 1980, c. 137, s.33(1)). Thus, both equal pay for equal work and equal pay for similar or substantiallysimilar work are subsumed. Earlier provisions specified only that male and femaleemployees performing the same work in the same establishment be paid equally: see,e.g., The Female Employees Fair Remuneration Act, 1951, S.O. 1951, c. 26, s. 2; TheEqual Pay Act, 1952, S.S. 1952, c. 104, s. 3; Equal Pay Act, S.N.S. 1956, c. 5, s. 3.

7 See the settlement involving the Public Service Alliance of Canada and TreasuryBoard (approved 17 December 1980) digested in 2 C.H.R.R., Cases of Note: Summariesof Recent Decisions and Settlements, 20 January 1981, and cited in Canadian HumanRights Commission, EQUAL PAY CASEBOOK 1978-1984 at 5-7.

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job evaluation techniques. Thus comparisons may be made betweendissimilar jobs. An example is the Canadian Human Rights Commissioncomparison of the relative value of the seven sub-groups of the 12,100member General Services Category of the federal public service.8 Theseven sub-groups were all paid at different rates. The lowest paid -food, laundry and miscellaneous personal services workers - were pre-dominantly female, while the remaining four sub-groups - messenger,custodial, building and store services workers - were predominantlymale. The case was settled for back-pay of some $17 million. The annualcontinuing wage adjustments would be in the same order.

It must be acknowledged that the equal value concept involves acomparison of apples and oranges. It is impossible to compare an appleto an orange in terms of consumer taste and preference. These factorslargely affect the fruits' market values. However, apples and oranges canbe compared in terms of their costs of production, storage and delivery,and their respective nutritional values. Equal value legislation reflectsthe political decision that workers' wages will not be determined whollyby market forces. The price of apples in the job marketplace may bedetermined by market forces. The price of oranges must be set accordingto their "value", relative to that of apples.

Section 11 of the Canadian Human Rights Act,9 in force since March1978, is an example of such legislation.

4. Pay Equity

A pay equity system adopts the equal pay for equal value principlebut does not rely solely on complaints to trigger enforcement of thelegislation's general prohibitions. A complaints system of enforcementis usually based on the assumption that violations are the exception, notthe rule. The investigation of individual complaints is only feasible ifbreaches of the legislation are exceptional. However, if one assumes thatthe existence of wage discrimination is systemic and pervasive throughoutthe economy, then obviously a complaints system of enforcement wouldbe inadequate. As well, if wage disparities are due, not to intentionaldiscrimination, but to the inherent structure of the market, then govern-ment intervention to correct wage disparities is not so much a guaranteeof non-discrimination as it is regulation of financial affairs.

Probably the main reason for abandoning the complaint-based modelis that the quasi-judicial mechanisms of anti-discrimination law are notsuited to the enforcement of equal value legislation. Equal pay for workof equal value legislation requires the use of compensation techniquesfor its proper administration. The relative worth of jobs must be measuredaccording to some job evaluation plan. Compensation practitioners areguided by "commonly accepted principles and methods", which have

8 EQUAL PAY CASEBOOK 1978-1984, ibid. at 8.9 S.C. 1976-77, c. 33.

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come to be accepted within the profession over time. However, theaddition of sex as a factor to be considered in compensation practice hasmeant that new techniques and methods have had to be developed. Forexample, in a large organization, a particular job is seldom staffed ex-clusively by men or women. There are male bank tellers, male nursesand female engineers. How does one identify a mixed group of workersas male or female for the purposes of meaningful comparison? Also, ina large organization there may be several different "male" jobs, eachperforming work of equal value to a particular "female" job. Does oneidentify a single comparison as being the most appropriate or does onecalculate the average? If the latter, how does one select among the variousaveraging techniques? What adjustments does one make? A judicial forumis not appropriate for deciding these questions.

B. Manitoba's Pay Equity Act

The newest initiatives in equal value legislation provide for regu-latory intervention completely outside the context of existing human rightslegislation. Under these pay equity schemes employers are obliged toidentify the female and male dominated classes among their employeesand to apply a single, gender-neutral job evaluation system to theseclasses, and then to make the wage adjustments which are determinedon bases that are technically specified.

The first example of such legislation in Canada was Manitoba's PayEquity Act.lo The Act applies only to the civil service (since 1 October1985)" and to certain Crown entities and external agencies as specified(since 1 October 1986).12 The external agencies are government hospitalsand universities. The Act obliges the Civil Service Commission and thebargaining agents of the employees to identify the female and maledominated groups of employees, to apply a single bias-free job evaluationplan to these classes and to implement the necessary wage adjustments.The Act imposes a ceiling of one per cent of the total payroll of theemployer per year, and a maximum of four such adjustments in fourconsecutive years.' 3 A pay equity bureau oversees the process and pro-vides for arbitration where no agreement is reached. 14 The arbitrator hasthe authority to issue an order determining the job evaluation system tobe applied, to prescribe conditions under which the job evaluation shallbe carried out and to decide to which classes the plan shall be applied.15Finally, the arbitrator may fix the quantum and allocation of wage ad-

10 S.M. 1985-86, c. 21, C.C.S.M. P13.II S. 8(1).12 S. 13(1); Schedule A.13 S. 7(3).14 S. 5(1).15 S. 10(7).

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justments and provide for the "orderly implementation of those adjust-ments".16

C. Ontario's Pay Equity Act, 1987

On June 15, 1987, the Province of Ontario passed its pay equitylegislation, Bill 154,17 which was proclaimed in force 1 January 1988.It is the first pay equity legislation anywhere in the world that applies tothe private sector. The legislation is for the benefit of women only's andthe preamble to the Act states that it is affirmative action to redress genderdiscrimination in the compensation of employees employed in femalejob classes. The Act obliges employers to establish and maintain com-pensation practices that provide for pay equity in their establishments. 19Furthermore, it prohibits an employer or bargaining agent from agreeingto compensation practices that would not provide for pay equity.20 Payequity is achieved when compensation adjustments, as set out in thelegislation, have been made. These adjustments will be based on com-parisons in the value of work performed by male and female job classes.21The value of dissimilar jobs will be determined by job evaluation tech-niques and must be based on the skill, effort and responsibility normallyrequired in the performance of the work and the conditions under whichit is normally performed.22 A new regulatory agency, the Pay EquityCommission, has been created to oversee the process.23

The new legislation does not rely only on the filing of complaintsfor its enforcement. Rather, positive obligations are placed on employerswith more than 100 employees in Ontario to undertake a series of stepsto scrutinize their pay practices and to ensure that they meet the require-ments of the legislation.24 Such employers must:1. analyse their work forces to identify female and male job classes25

(those that are sixty per cent female or seventy per cent male re-spectively, or any other class so designated by the employer, theemployer and the union, or by the Pay Equity Commission);26

2. compare the value of work performed by male and female job classesby applying an acceptable job evaluation plan;27

3. increase the wage of each female job class to equal the wages of theemployer's lowest paid male job class performing work of the same

16 S. 9(1).17 Pay Equity Act, 1987, S.O. 1987, c. 34.18 S. 4.19 S. 7(1).20 S. 7(2).21 S. 12.22 S. 5.2 S. 27.24 See Part II of the Act.2 S. 12.26 S. 1.27 S. 12.

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value in the establishment, and if possible within the same collectivebargaining unit. If there is no such male job class, then the requiredincrease is to the wages of the highest paid male job class that isperfoming work of lesser value.28

In each year the wage adjustments required by the Act will be limitedto one per cent of an employer's total annual payroll in Ontario.29 Thelegislation will be reviewed after seven years. 30

The Act stipulates that comparisons need only be made within each"establishment" of the employer, which has a geographic and not afunctional meaning. An "establishment" would include all employees ofan employer within a county, territorial district or regional municipality.The Municipality of Metropolitan Toronto is one "establishment". A widerdefinition of the establishment can be adopted by the employer, or imposedby the Pay Equity Commission.31

Employers must devise and post in their workplaces "Pay EquityPlans" which describe in detail their programs for complying with thelegislation. 32 The bargaining representatives of unionized employees mayfile objections regarding the content of a pay equity plan33 and then thematter will be decided by the Pay Equity Commission. Where no unionis involved, any employee may file objections. 34 The Pay Equity Com-mission is granted extensive powers to investigate and adjudicate objec-tions and complaints.35

The application of the Pay Equity Act will be phased in. Employersin the public service and the broader public sector will have two yearsto post their pay equity plans and to begin making wage adjustments.Employers with at least 500 employees in Ontario also will have twoyears to post their plans, but will have three years to start making ad-justments. Employers with 100 to 499 employees in Ontario have threeyears to post their pay equity plans and four years to begin making wageadjustments.36

Employers with fewer than 100 employees need not post pay equityplans, or make wage ajustments on their own initiative.37 However, ifthey do not they will be vulnerable to complaints filed against them. Ifthey choose to comply voluntarily with the positive obligations imposedby the statute, such employers have longer periods in which to do so.

28 S. 6.29 SS. 13(4), 13(5).30 S. 37.31 S. 1.32 S. 13.33 S. 14.34 Part H.35 Parts IV and V.36 Ss. 10, 13(2)(e).37 SS. 19, 20.

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The legislation does not apply to employers with fewer than ten em-ployees.38

The awesome impact which equal value legislation will have oncollective bargaining is obvious. Wages will be determined by job eval-uation techniques rather than by negotiation. Only Ontario's Act attemptsto minimize its effect on collective bargaining by providing that, wherepossible, comparisons made under the legislation respect bargaining lines,39and that once pay equity has been achieved, any future differences thatdevelop be allowed if the employer establishes that they are due todifferences in bargaining strength.40

D. New Federal Guidelines

In December 1986, the Canadian Human Rights Commission issuednew Equal Wage Guidelines41 which are binding on any human rightstribunal that deals with equal pay complaints under the Canadian HumanRights Act.42 The Guidelines are intended to interpret section 11 of theAct, which provides that women and men must be paid equally for workof equal value in the same establishment. The new Guidelines build onexisting legislation43 that defines the four criteria provided by section 11for calculating the value of work: skill, effort, responsibility and workingconditions. The existing statutory instrument also prescribes reasonablefactors that justify differences in pay between men and women. 44

The new Guidelines will be most relevant to large employers, asthey indicate, for the most part, how the Commission will deal withcomplaints involving occupational groupings of employees, rather thanindividual employees.45 The Guidelines stipulate when the Commissionwill deem a mixed group of employees to be either male or female. Anoccupational group will be deemed to be composed predominantly ofone sex if the number of members of that sex constituted, for the yearimmediately preceding the date on which the complaint was filed, atleast: (a) 70 per cent of the occupational group, if the group has fewerthan 100 members; (b) 60 per cent of the occupational group, if the grouphas from 100 to 500 members; and (c) 55 per cent of the occupationalgroup, if the group has more than 500 members.46 The reason for thedifferent percentages is that the same degree of statistical certainty thatthe composition of the group was not due to random factors is appliedto the groups of different sizes.

38 S. 3.39 S. 6(4).- S. 8(2).41 Equal Wage Guidelines, 1986, SOR/86-1082.42 S.C. 1976-77, c. 33.43 Equal Wage Guidelines, SI/78-155, as am. S1/82-2." SI/78-155, s. 4(1), as am. SI/82-2, s. 1.45 Equal Wage Guidelines, 1986, SOR/86-1082, ss. 12-15.-6 S. 13.

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In large work forces there may well be several groups of maleemployees that are paid differently, but which all perform work of valueequal to that of a group of female employees. The Commission will notallow a comparison to be made between the female group and only thehighest paid male group. 47 The Guidelines provide that the female group'swages will be adjusted to the average of the male groups' wages andprescribe the method for calculating that average.48

Significantly, the new Guidelines define "value" as meaning valueto the enterprise or to the employer, as determined by the employer onthe basis of approved criteria. 49 Where the employer uses a formal systemof job evaluation, the Commission will use that system to measure thevalue of jobs if it is satisfied that the system measures job value in termsof the criteria set out in the Act: skill, effort, responsibility and workingconditions on an establishment-wide basis .50 If no such system is in place,the Commission will use a system of its own choosing. By adopting thisdefinition of value, the Commission is obviously attempting to providean incentive to large employers to develop and use universal job evaluationsystems that can measure the entire range of work performed in theirestablishment.

The Guidelines set out an extremely wide definition of "establish-ment". An establishment will include all employees that are subject toa common personnel and wage policy, whether or not such policy isadministered centrally, and notwithstanding any collective agreementapplicable to any employees.5' The Commission, obviously appreciatingthe breadth of this definition, has added the defence of regional rates ofpay to its list of reasonable factors which justify a difference in pay.5 2

The issuing of the new Guidelines coincides with new equal payinitiatives by Labour Canada 3 Labour inspectors are able to use theirstatutory powers of inspection to examine an employer's books to as-certain whether section 11 of the Canadian Human Rights Act 54 is beingcomplied with. The Canada Labour Code provides that labour inspectorsmay notify the Human Rights Commission of their information or evenfile complaints themselves5 These powers have existed since 1978 buttheir use has begun only recently. Between November 1986 and the endof March 1987, Labour Canada planned to make contact with 250 em-

47 S. 14.48 S. 15.49 S. 9.so S. 9.51 S. 10.52 S. 16(j).53 R. Godmer, Address (Gordon Group Conference on Pay Equity, Toronto, 9

December 1986) [unpublished].5 S.C. 1976-77, c. 33.55 R.S.C. 1970, c. L-1, s. 38.1(2), as enacted by S.C. 1976-77, c. 33, s.

66(2).

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ployers within federal jurisdiction. The projection for the following yearcalls for 450 employers to be contacted.56

III. AFFIRMATIVE ACTION

A. The A.TF. Case

In the period under survey the Supreme Court of Canada renderedits first judgment regarding affirmative action in Canada: Action Travaildes Femmes v. C.N.R. 57

Previously a minority of the Court had stated obiter, in AthabaskaTribal Council v. Amoco Canada Petroleum Co.,58 that an affirmativeaction program for native peoples in the North should not be construedas "discriminating against" other inhabitants.

In the ATF case, a Human Rights Tribunal59 under the CanadianHuman Rights Act enquired into a complaint that Canadian National6 0

had established and pursued policies and practices in its St. Lawrenceregion that deprived women of employment opportunities in the unskilledblue collar entry level positions.

The Tribunal concluded that discriminatory practices were pervasiveand deeply rooted throughout CN's hiring process. The Tribunal orderedthat CN should discontinue the use of the Bennett Mechanical AptitudeTest which excluded a disproportionate number of women. Furthermore,female candidates could no longer be made to undergo physical tests notrequired of male candidates, and the requirement of welding experiencehad to be abandoned. The Tribunal also ordered CN to hire at least onewoman for every four non-traditional positions filled until women heldthirteen per cent of the non-traditional jobs. The hiring quota of one infour had to be achieved on a quarterly basis. In addition, CN was orderedto undertake an information and publicity campaign to recruit womenfor non-traditional positions and to submit quarterly reports of the hiringthat it had done and the manner in which it was complying with theTribunal order.

The thirteen per cent figure in the Tribunal's order was based onevidence that women held thirteen per cent of blue collar jobs in Canada,whereas women made up 0.7 per cent of blue collar jobs in the respon-

56 Supra, note 53 at 10.57 (1987), [1987] 1 S.C.R. 1114, 76 N.R. 161 [hereinafter ATF].58 (1981), [1981] 1 S.C.R. 699, 124 D.L.R. (3d) 1. For a discussion of this

case, see R. Juriansz, Survey of Anti-Discrimination Law (1984) 16 OTTAWA L. REV.117.

59 Action Travail des Femmes v. C.N.R. (1984) 5 C.H.R.R. D/2327, rev'd (subnom. C.N.R. v. Canadian Human Rights Comm'n) (1985), [1985] 1 RC. 96, 20D.L.R. (4th) 668 (A.D.), rev'd supra, note 57.

60 Hereinafter CN.

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dent's St. Lawrence region. At the time, women comprised 40.7 per centof the total Canadian labour force and 39 per cent of the labour force inQuebec.61

For its jurisdiction to make such an order, the Tribunal relied onparagraph 41(2)(a) of the Canadian Human Rights Act,62 which permitsa tribunal, upon finding that a complaint was substantiated, to make anorder,

[t]hat [the respondent] cease such discriminatory practice, and in order toprevent the same or a similar practice from occurring in the future, takemeasures, including

(i) adoption of a special program, plan or arrangement referred to in sub-section 15(1).

in consultation with the Commission on the general purposes of thosemeasures.

On review, the Federal Court, Appeal Division,63 pointed out thatthe power conferred by paragraph 41(2)(a) was preventive only. Mr.Justice Hugesson described the power as follows:

Reduced to its essentials, this text permits the Tribunal to order thetaking of measures aimed at preventing the future occurrence of a discrim-inatory practice on the part of a person found to have engaged in such apractice in the past. The power to make such an order is defined by itspurpose. This is clear enough in the English text ("take measures ... toprevent"), but clearer still in the French ("prendre des mesures destineesa prevenir").

The sole permissible purpose for the order is prevention; it is notcure. The text requires that the order look to the avoidance of future evil.It does not allow restitution for past wrongs. 64

Hugesson J. went on to observe that the compensatory remediesavailable under the Act were limited to the identifiable individual victimsof the discriminatory practice. He observed that it was "impossible, orin any event inappropriate, to apply it in cases of group or systemicdiscrimination where, by the nature of things, individual victims are notalways readily identifiable". 65

According to Hugesson J., the purpose of subsection 15(1), to whichparagraph 41(2)(a) refers, is obviously to prevent voluntary affirmative

61 Supra, note 59 at D/2367-69.62 S.C. 1976-77, c. 33, s. 41(2)(a), as am. S.C. 1980-81-82-83, c. 143, s. 20.63 Supra, note 59.64 Ibid. at 102, 20 D.L.R. (4th) 668 at 671.65 Ibid. at 102, 20 D.L.R. (4th) 668 at 671-72.

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action programs from being struck down as "reverse discrimination".66Subsection 15(1) contemplates "reversing the consequences of past wrongsas well as avoiding their recurrence".67 However, the difference betweensubsection 15(1) and paragraph 41(2)(a) is that the former contemplatesvoluntary affirmative action and the latter a mandatory order. HugessonJ. said that "paragraph 41(2)(a) is limited to prevention in the future;subsection 15(1) allows the sins of the fathers to be visited upon thesons".68 Mr. Justice Hugesson concluded that this particular tribunal orderand reasoning were expressed in terms that were purely remedial, andnot preventive. He therefore set it aside.69

Mr. Justice Pratte concurred with Hugesson J. but was prepared togo further. In his judgment the special initiatives to recruit women whichthe Tribunal imposed on CN were also remedial in nature and he wouldhave set these aside as well. Additionally, the reporting conditions hadthe sole purpose of enabling the Human Rights Commission to monitorthe implementation of the remedial portions of the order, and thereforethey too were set aside.70

Mr. Justice MacGuigan, dissenting, would not have disturbed theorginal order. He agreed that the Tribunal's mandate under paragraph41(2)(a) was to make a preventive order only. He rejected the Commis-sion's argument that the powers of a Tribunal to require mandatoryaffirmative action under paragraph 41(2)(a) were co-extensive with theauthority of an employer to undertake affirmative action voluntarily undersubsection 15(1). However, he noted that:

It must be admitted that the Tribunal did not attempt to provide ajustification of the heart of its affirmative action program, viz., its specialtemporary measures (to hire one woman in four in non-traditional occu-pations until the desired objective of 13% is reached) in a form explicitlyparallel to its powers under paragraph 41(2)(a), but that should not preventthe upholding of these measures by this Court if they can be interpreted tobe within that paragraph. In my view, they can be so justified.71

The Supreme Court of Canada, in a judgment delivered by the ChiefJustice,72 concluded that while the Tribunal's jurisdiction was preventive,so was its order. The order was "rationally designed to combat systemicdiscrimination in the Canadian National St. Lawrence Region by pre-venting 'the same or a similar practice occurring in the future' ".73 Thisconclusion was based on an analysis of systemic discrimination and what

66 Ibid. at 103, 20 D.L.R. (4th) 668 at 672.67 Ibid.68 Ibid.69 Ibid. at 104, 20 D.L.R. (4th) 668 at 673.70 Ibid. at 100, 20 D.L.R. (4th) 668 at 670.71 Ibid. at 120, 20 D.L.R. (4th) 668 at 686.72 ATF, supra, note 57.73 Ibid. at 1145-46, 75 N.R. 161 at 196.

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was required to eradicate it. Chief Justice Dickson defined "systemicdiscrimination" in an employment context as:

[the] discrimination that results from the simple operation of establishedprocedures of recruitment, hiring and promotion, none of which is neces-sarily designed to promote discrimination. The discrimination is then re-inforced by the very exclusion of the disadvantaged group because theexclusion fosters the belief, both within and outside the group, that theexclusion is the result of "natural" forces, for example, that women "justcan't do the job". . . .74

An employment equity program such as the one ordered by theTribunal was designed to break the continuing cycle of systemic dis-crimination. Such a program works, he said, in three ways:

First, by countering the cumulative effects of systemic discrimination,such a program renders further discrimination pointless. To the extent thatsome intentional discrimination may be present, for example in the case ofa foreman who controls hiring and who simply does not want women inthe unit, a mandatory employment equity scheme places women in the unitdespite the discriminatory intent of the foreman. His battle is lost.

Secondly, by placing members of the group that had previously beenexcluded into the heart of the workplace and by allowing them to proveability on the job, the employment equity scheme addresses the attitudinalproblem of stereotyping....

Thirdly, an employment equity program helps to create what has beentermed a "critical mass" of the previously excluded group in the workplace.75

The Chief Justice, citing authorities,76 observed that the critical masswas important to eliminate the problems of tokenism, to ensure that thegroup would not be on the periphery of management concern and toeffectively remedy systemic inequities in the process of hiring as theinformal tendency to refer friends or relatives for employment wouldbegin to produce a female applicant flow. 77 The Chief Justice observedthat "once a 'critical mass' of the previously excluded group has beencreated in the work force, there is a significant chance for the continuingself-correction of the system".78

Chief Justice Dickson did not share the views of both Hugesson J.and MacGuigan J. that mandatory employment equity under paragraph

74 Ibid. at 1139, 76 N.R. 161 at 188.75 Ibid. at 1143-44, 76 N.R. 161 at 193-94.76 A.W. Blumrosen, Quotas, Common Sense and Law in Labour Relations:

Three Dimensions of Equal Opportunity in W.S. Tamopolsky, ed., SOME CIVILLIBERTIES ISSUES OF THE SEVENTIES (Toronto: Osgoode Hall Law School/York Uni-versity, 1975) 5 at 15; C. Agocs, Affirmative Action, Canadian Style (1986) 12CANADIAN PUBLIC POLICY - ANALYSE DE POLITIQUES 148 at 149.

77 Supra, note 57 at 1144, 76 N.R. 161 at 194.78 Ibid., 76 N.R. 161 at 195.

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41(2)(a) was narrower than the voluntary employment equity contem-plated by subsection 15(1). His interpretation was as follows:

Section 15(1) of the Act is designed to save employment equity programsfrom attack on the ground of "reverse discrimination". If s. 41(2)(a) is readto limit the scope of such programs, no effective mandatory employmentequity program could be undertaken in any circumstances, and the legislativeprotection offered to the principle of employment equity would be nullified79

Of the Tribunal's order, he said that "[i]t is a 'special program, plan orarrangement' within the meaning of s. 15(1) and therefore can be orderedunder s. 41(2)(a)". 8o

Since the Chief Justice agreed that a tribunal order under subsection41(2)(a) must be preventive, it may be inferred that he was of the viewthat voluntary affirmative action under section 15 must also be preventive.Both Hugesson J. and MacGuigan J. were prepared to give voluntaryaffirmative action under section 15 a wider scope.8'

By its broad purposive approach the Supreme Court of Canada hasleap-frogged the debate, currently underway in the United States, overwhether the individuals who benefit from affirmative action programsmust themselves have experienced discrimination. The debate is avoidedbecause the hiring quota is not a remedy for past discrimination but ratheris designed to break a continuing cycle of systemic discrimination. ChiefJustice Dickson said:

The goal is not to compensate past victims or even to provide new oppor-tunities for specific individuals who have been unfairly refused jobs orpromotion in the past, although some such individuals may be beneficiariesof an employment equity scheme. Rather, an employment equity programis an attempt to ensure that future applicants and workers from the affectedgroup will not face the same insidious barriers that blocked their forebears.82

The Chief Justice saw a problem in that the order of the Tribunalwas "expressed in terms of an employment goal, rather than a hiringgoal. This methodology might increase the belief that the Order wasremedial and not, properly speaking, preventive."83 An employment goaldoes indeed smack of remedy. A group that has suffered discriminationin the past, is compensated by being awarded the share of the job poolthat it would have had, but for the history of discrimination. That isremedial. Still, the stipulation of an employment goal is implied by theChief Justice's rationale.

If a hiring quota is understood, as it was by the Chief Justice, as aratio greater than the group's proportional share of the job pool in order

79 Ibid. at 1133, 76 N.R. 161 at 181.80 Ibid. at 1145, 76 N.R. 161 at 196.81 Supra, note 59 at 103, 119, 20 D.L.R. (4th) 668 at 672, 685.82 Supra, note 57 at 1143, 76 N.R 161 at 193.83 Ibid. at 1146, 76 N.R. 161 at 196.

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to accelerate the creation of a critical mass of employees to break thepattern of systemic discrimination quickly, then it is necessary to specifya point at which it ceases to apply. Otherwise the accelerated hiring quotawould eventually go beyond being preventive, and beyond being remedialas well.

The Chief Justice's rationale implies that the accelerated hiring ratioshould cease to apply when the "critical mass" is achieved.8 4 However,we are offered no guidance as to how much a "critical mass" is. Thewriter suggests that while a "critical mass" can never be greater than theultimate "employment goal", it can and usually will be less than thatgoal. The Chief Justice's reasoning does not provide a basis for anaccelerated hiring quota that remains in force after a "critical mass" hasbeen reached. The Tribunal did not find as a fact what the critical masswas. If one is content to assume that the critical mass was equal to theemployment goal in this case, then the quota must cease to apply afterthe employment goal is reached. The Chief Justice's disapproval of theemployment goal is thus difficult to understand.

Mr. Justice MacGuigan, dissenting in the Appeal Division, offereda different rationale for supporting the Tribunal's order. He too charac-terized employment goals as generally remedial:

The Tribunal expressed its goal, in terms, not of hiring, but of employment.This is undoubtedly what conjures up an image of a general social goal ofemployment of women out of proportion to the discrimination actuallyestablished here.85

While Mr. Justice MacGuigan disapproved of the employment goalof thirteen per cent, he rationalized his support for the Tribunal's Orderby saying:

But in fact hiring and employment are opposite sides of the same coin.Employment is the consequence of, and the more permanent state resultingfrom, hiring. In the absence of discrimination, employment ratios probablyroughly correspond to hiring ratios over a sufficient period of years. Butwhat is key to the decision, and is a matter of which I believe this Courtmust take judicial notice, is that the only available official statistics on ascientific data base relate to employment. Statistics Canada does not publishgeneral statistics either as to hiring (the "in" stream) or separation (the"out" stream) from employment, but only as to the employment "stock".86

Having rationalized the employment goal in this way, Mr. JusticeMacGuigan accepted the accelerated hiring quota as merely the rate atwhich the Tribunal chose to move to the employment goal. This was amatter within its discretion.

The writer does not find this reasoning attractive. For one, it pre-sumes a static rather than a dynamic profile of the labour force. The

- Ibid. at 1144, 76 N.R. 161 at 194.s5 Supra, note 59 at 122, 20 D.L.R. (4th) 668 at 688.86 Ibid.

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thirteen per cent figure represents a snapshot of the Canadian labour forceat a particular time. If the proportion of women performing blue collarwork were increasing rapidly, then the hiring ratios of women wouldindeed exceed their employment ratios over a period of years. In fact,long term trends in the labour force indicate an increasing proportion ofwomen.87 Therefore, one would expect hiring ratios to be different fromemployment ratios.

Second, there is no reason for restricting the burden on the Com-mission and the complainant to adduce only statistical evidence that isreadily available. If the appropriate statistics are those that relate to"hiring" then these are the statistics that should be required. A courtdecision to that effect might prompt Statistics Canada to collect andpublish the necessary data.

Finally, Mr. Justice MacGuigan's description of the acceleratedhiring quota as merely the rate at which the employment goal would bereached ignores the issue of whether the hiring quota is preventive orremedial. The discretion of the Tribunal to determine the rate at whichthe employment goal should be met may well be restricted to the rangeof rates that may be characterized as preventive.

Mr. Justice MacGuigan's reasons do not cite the American caseswhich do describe accelerated hiring quotas as the rate at which em-ployment goals are reached. For example, in United States v. Paradise,the United States Supreme Court upheld an accelerated hiring quota offifty per cent in order to reach an employment goal of twenty-five percent for black state troopers in Alabama. 8 The Trial Court's jurisdictionto make such an order was based on its general jurisdiction to fashionappropriate relief for violation of the 14th Amendment of the AmericanConstitution. The Supreme Court stated that "the 50 per cent figure isnot itself the goal; rather it represents the speed at which the goal of 25per cent will be achieved".89 However, the crucial point is that in theUnited States such orders are as much remedial as they are preventive.In fact, in Paradise the Supreme Court said that "[t]he figure selectedto compensate for past discrimination and delay necessarily involved adelicate calibration of the rights and interests of the plaintiff class, theDepartment, and the white troopers".90

It remains to scrutinize Mr. Justice Hugesson's reasons in the AppealDivision, of which Chief Justice Dickson said: "Justice Hugesson simplydid not believe, without some precise factual showing, that specific hiringgoals could be related to prevention, and thereby fall within 41(2)(a)." 91

87 Historical labour force statistics - actual data, seasonal factors, seasonallyadjusted data, Statistics Canada 1987 Cat. 71-201 (Ottawa: Ministry of Supply andServices Canada, 1988) at 253-58.

88 107 S. Ct. 1053 (1987).89 Ibid. at 1071.90 Ibid. at 1072.91 Supra, note 57 at 1140, 76 N.R. 161 at 190.

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On my reading, Hugesson J. did not disapprove of all hiring quotas.His concern was only with accelerated hiring quotas that exceed theultimate employment goal. But even these he did not rule out completely.He said:

I would certainly not be prepared to hold, as a matter of law, that in orderto meet the test of being preventive a hiring quota must always bear a one-to-one relationship with the ultimate goal; I would think, however, that anyvariance from that ratio would require some very specific findings by theTribunal in order to justify it.92

A hiring quota that equals the ultimate employment goal preventsfuture discrimination by ensuring that women gain their share of newjobs in the future without attempting to remedy their diminished shareof the job pool due to past discrimination. Mr. Justice Hugesson's rea-soning was that if thirteen per cent were the appropriate proportion ofwomen in blue collar positions, then a hiring quota of thirteen per centwould prevent future discrimination. A tribunal order that thirteen percent of new hirees be women would prevent future discrimination. Intime, the proportion of women would rise to thirteen per cent of the bluecollar work force. However, the Tribunal's imposition of a hiring quotaof twenty-five per cent was "a catch-up provision whose purpose canonly be to remedy the effects of past discriminatory practices. Thatpurpose is not one which is permitted by section 41."93

Mr. Justice Hugesson's legitimate hiring quota - one that equalledthe employment goal - would be completely effective in preventingfuture discrimination. It would prevent the system of discrimination fromdenying women the employment opportunities that they would have hadabsent discrimination. Why then is an accelerated hiring quota necessaryfor prevention?

The Chief Justice suggested that the creation of a "critical mass"of the previously excluded group would not only prevent future discrim-ination but provide "a significant chance for the continuing self-correctionof the system".94 It may be observed that an unaccelerated hiring quotawould also create a "critical mass", albeit not as quickly. This seems tobe the crux of Chief Justice Dickson's decision. He referred to theevidence before the Tribunal that the few women who were hired "weresubjected to extremely unpleasant treatment by their male colleagues".95A "critical mass" would give the women peer support, as well as makingit difficult for the men to treat all female colleagues in the manner referredto by the Chief Justice. Thus, it was important to create the "criticalmass" as quickly as possible.

92 Supra, note 59 at 104-05, 20 D.L.R (4th) 668 at 673.93 Ibid. at 104, 20 D.L.R. (4th) 668 at 673.94 Supra, note 57 at 1144, 76 N.R. 161 at 195.95 Ibid. at 1123, 76 N.R. 161 at 170.

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It would be easy to read the decision too widely. It certainly is notauthority for a hiring quota, let alone an accelerated hiring quota in allsituations in which systemic discrimination has excluded a particulargroup from employment opportunities. Chief Justice Dickson was carefulto identify three features of this case that made a mandatory hiring quotapermissible. The first was the clear and pervasive systemic discriminationthat existed against women. While the statistics of disparity were im-portant, the Chief Justice took pains to review the extensive direct evi-dence. Second, the Tribunal had found that the small number of womenin non-traditional jobs tended to perpetuate the exclusion. Third, CNknew that its policies and practices, although perhaps not discriminatoryin intent, were discriminatory in effect, yet had done nothing substantialto rectify the situation. In short, a hiring quota must be necessary to"break the continuing cycle" before it is preventive rather than remedial.96

One can think of examples of discrimination resulting in grossstatistical disparity where a hiring quota would not be permissible, giventhe Court's reasoning. A transportation company that had an express ruleexcluding women from the position of bush pilot would have a workforce which demonstratred a statistical disparity. Assume further thatpilots work alone and their recruitment is centralized. In such a case, ahiring quota is not necessary to break the cycle of systemic discrimination.The cycle is broken with the striking down of the exclusionary rule.There is no evidence that the situation will tend to perpetuate itself orthat the respondent will do nothing to hire women once the rule iswithdrawn. In such a situation, it is suggested, a hiring quota would beremedial rather than preventive.

B. The Employment Equity Act

Another significant factor in the development of affirmative actionprinciples is the federal Employment Equity Act. 97 This Act requires everyCrown corporation and private employer in federal jurisdiction havingover 100 employees9s to file with the Minister of Employment and Im-migration an annual report setting out the degree of representation intheir work forces of the following designated groups: women, aboriginalpeoples, persons with disabilities and "visible minorities".99 The reportmust aggregate this information by occupational grouping and salaryrange. As well, the number of employees hired, promoted and terminatedin each year and the degree of representation of the designated groupsamong those hired, promoted or terminated must also be reported. l00

96 Ibid. at 1143, 76 N.R. 161 at 193.97 S.C. 1985, c. 31.9s S. 3.99 S. 3.I- S. 6.

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In addition to the reporting requirement, the Act requires the em-ployer to prepare an affirmative action plan for achieving, within its workforce, representation from the designated groups proportional to theirrepresentation in the work force as a whole or in the segments of thework force from which the employees are drawn. 101 The plans must setout numerical goals that the employer intends to achieve, together witha timetable for reaching those goals.

While the Act does not provide for the enforcement of the obligationto prepare affirmative action plans, copies of the annual reports receivedby the Minister will be sent to the Canadian Human Rights Commission,which will be able to initiate complaints of discrimination against em-ployers based on the data set out in the reports. 10 2 The unstated premiseis that the Human Rights Commission is more likely to initiate complaintsagainst those employers who have not prepared plans. The statute alsoprovides that the Minister will prepare and publish a yearly consolidationof the reports received. 103 Furthermore, all reports filed with the Ministerwill be available for public inspection. 104

C. The Federal Contractors Program

The federal government has extended its employment equity policyto companies operating under provincial jurisdiction by using its con-tracting power.105 All suppliers of goods and services who employ 100people or more and are seeking government contracts worth $200,000or more must commit themselves to implementing employment equityin order to be qualified to bid. The Canada Employment and ImmigrationCommission will review a representative sample of contractors period-ically to ensure they are complying with their undertakings. 10 6 Failure tocomply may lead eventually to exclusion from bidding on federal gov-ernment contracts. As of February, 1987, more than 500 companies hadfiled the necessary Certificates of Commitment. Also in February, 1987,the federal government for the first time cancelled a call for tendersbecause the bidders had all failed to file certificates. 107

101 Ss. 4, 5.102 S. 8.103 S. 9.-04 S. 10.

105 Treasury Board Directive no. 802984, Federal Contractors Program forEmployment Equity - Departmental Responsibilities concerning Contracting for Goodsand Services of $200,000 or More (25 August 1986) Circular Letter no. 1986-44.

106 Employment and Immigration Canada, Employment Equity: The FederalContractors Program (Cat. no. WH 3,590) at 2.

'07 The Honourable Monique Vezina, Minister of Supply and Services andReceiver General of Canada (Address to the Opening of the Office Automation Showfor the Disabled, Ottawa, 17 February 1987) [unpublished].

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IV. SYSTEMIC DISCRIMINATION AND STATISTICS

The Supreme Court of Canada's holding in both O'Malley 10s andBhinder,109 that human rights legislation applies to adverse effectdiscrimination, has heightened the emphasis that Human Rights Com-missions place on a systemic approach to the enforcement of theirgoverning statutes. Statistical disparities will lead to scrutiny of anemployer's neutral procedures of recruitment, hiring and promotion todetermine if they have a disproportionate effect on particular groups.Employers will be called upon to show that the statistical disparitiesare not due to discrimination and to justify their procedures andrequirements as job-related.

An obvious illustration of a hiring device that must pass the testof systemic discrimination is the pre-employment test of intelligence,aptitude or psychological profile. These tests are often given to largegroups of people and simple arithmetic determines if they have theeffect of disproportionately excluding members of one group. The veryadministration of such tests may place some individuals at a disadvan-tage. Obviously a blind person cannot sit for an ordinarily administeredwritten test. An employer who gives such tests should be ready tomake adjustments in the administration of the tests for persons withhandicaps. It may be necessary to vary the lighting, provide a taperecorder, typewriter or versa braille alternative. Tests given in Englishfor jobs with no bona fide language requirement may discriminate onthe basis of national or ethnic origin. Certainly, complaints are possibleabout the nature of the test sitting itself. But the most difficult andinteresting complaints will concern the content of the tests themselves.

The most significant case to date regarding pre-employment testsdid not proceed under human rights legislation, but under the PublicService Employment Act.110 The case Re Maloley II was a direct attackon the use of the Public Service Commission Examination 320 GeneralIntelligence Test (hereinafter referred to as the GIT 320), in theselection process for clerical jobs in the federal public service. From1980 to 1985, 55 per cent of men, but only 40 per cent of womenpassed the GIT 320.112 In the selection process before the AppealBoard, nearly 60 per cent of the men, but only 27 per cent of thewomen passed the test .113 These figures were not based on small

108 Supra, note 2.109 Supra, note 3.110 R.S.C. 1970, c. P-32.'if (Decision 1) (27 February 1986), Ottawa B-05-21-TAX-28 (Public Serv.

Comm'n App. Bd.) [unreported], application to set aside dismissed (5 November1986), A-130-86 (F.C.A.D.) [unreported] [hereinafter Maloley].

112 Unreported decision of the Public Service Comm'n App. Bd., ibid. at 130.113 Ibid., App. B at 14.

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numbers. Between 1980 and 1985, 965 men and 1,349 women hadtaken the test" 4 and in the competition at issue, 366 people had writtenit."5 The Appeal Board heard the appeals of four individuals againstappointments made to positions in the Department of National Revenue.

The opposition Conservative Party had been vocal in its criticismof the tax collection system, establishing a series of public hearingsthat received a great deal of media coverage. The official oppositionstudy and another study commissioned by the Department itself criti-cized the Department's enforcement process. New departmental ruleswere adopted that would require the use of restraint, less arbitrarymethods and more emphasis on contact and persuasion. These devel-opments took place while taxes owing had increased dramatically from$1.6 billion in 1980 to $3.5 billion in 1985, an amount equal to tenper cent of the federal government's annual deficit. At the same timethe Department's ability to collect taxes had dropped. In 1985 theaverage collected by a collections clerk was $86,000 compared to$115,000 in 1984. The Department decided that it needed highercalibre employees in the position of collections enforcement clerk. TheDepartment began a process of hiring 130 such clerks. The new clerkswould not be working by the book. Rather, they would use their owndiscretion in dealing with each individual account. They would haveto have the ability to evaluate information, make decisions and presentthe decisions in a tactful manner. At the same time the training periodwould be reduced from twelve months to five months. Therefore thecandidates would have to be able to learn quickly and be capable ofevaluating new situations and solving problems." 6

Given all these considerations the Department decided to use theGIT 320, with a higher than usual cut-off score as part of the screeningprocess. In the selection process that followed, 47 of 115 men and183 of 251 women failed to achieve the cut-off score, and wereeffectively eliminated from the competition.117

The Appeal Board,118 in a decision of 137 pages of reasons andsome 40 pages of appendices, dismissed the appeals against the selec-tions for appointment that were made on the basis of the test results.

An important point regarding the process must be made. Staffingwithin the Public Service must be "according to merit" as is requiredby section 10 of the Public Service Employment Act.' '9 Consequently,the Department had to prove that the test was valid and reliable inselecting candidates according to merit. A test that discriminates is notvalid and, therefore, the Appeal Board had to consider the discrimi-

114 Ibid. at 10."5 Ibid., App. B at 13.116 Ibid. at 27."7 Ibid., App. B at 13.118 Ibid.119 R.S.C. 1970, c. P-32.

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nation issue. The determination of that issue was, of course, a highlytechnical matter which involved the testimony of many expert wit-nesses, many of them industrial psychologists.

Several of the experts before the Appeal Board referred to the"four-fifths rule". This rule comes from the Uniform Guidelines onEmployee Selection Procedures120 jointly adopted by the United StatesEqual Employment Opportunites Commission, the Civil Service Com-mission, the Department of Labour and the Department of Justice in1978. These Guidelines recognize that there will be differences in thepass rates of various groups, but if the rate is small there is no needfor concern. Adverse impact is indicated according to the "four-fifthsrule"; that is, when the proportion of one group passing a scored testis less than four-fifths of that passing in a comparison group. The four-fifths rule cannot be considered evidence of adverse effect discrimi-nation. Only sound statistical analysis should be tendered as evidencebefore a human rights tribunal. With large groups, a proportion greaterthan four-fifths may be evidence of an adverse effect. The four-fifthsrule is merely an indication of when sophisticated analysis is necessary.

In the selection process at issue before the Appeal Board, 60 percent of the men, but only 27 per cent of the women passed the GIT320. Thus, the proportion of women who passed compared to menwas 45 per cent - well below four-fifths. Statistical analysis of thedata proved that the results could not be due to chance alone. Thisleft three possibilities:1. the test was biased against women;2. there were differences between the male and female populations

who wrote the test; or3. there are differences between men and women which explain their

different performance on the test.

The third possibility cannot seriously be considered to be theexplanation of differing results on a test of general cognitive ability. Iinclude the third possibility for the purpose of discussion because insome scenarios the actual differences between groups must be consid-ered.121 Which of these three possibilities is the reason for the resultswill depend on whether the test is reliable and valid.

The terms "reliable" and "valid" merit some explanation. "Re-liability" relates to the precision of measurement regardless of what ismeasured. For example, one may want to know how much peopleweigh. Scales that give widely differing readings for different weigh-ings of the same individual are not reliable. The measurements thatone gets will only be as accurate as the scales used. All measurementinvolves some error. Test reliability indicates the extent of that error.

120 29 C.ER. §1607 (1978).121 See, e.g., Part V, infra.

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Test "validity" is quite another matter. A test can have highreliability but not be valid for the purpose for which it is used. Supposeone wants to predict success in college. Highly reliable bathroomscales which measure weight precisely would not be a valid test forcollege entrance. A highly reliable measure may be valid for onepurpose but not for another. Validity depends on the use to which thetest is put. In order to be valid a test must be highly reliable as well.

Even if valuable and valid, there remains the issue of whetherthe use of the test is fair. The use of a reliable and valid test thatexcludes disproportionately is not fair if a different test or selectionmechanism, equally reliable and valid, but that does not excludedisproportionately, is available. A case of discrimination may be estab-lished, even where the test used is reliable and valid, if an employerrefuses to use alternatives with less discriminatory impact.

Validity can be established only by empirical evidence and canbe categorized as one of three basic types:1. In "predictive validity", the object of the test is the determination

or prediction of future behaviour or future performance (very oftenin an academic or employment setting). Pre-employment writtentests usually require predictive validity.

2. In "content validity", the object of the test is the direct measure-ment of performance. A test of the mechanical co-ordination mightbe used to predict the ability to learn how to drive a car. Thiswould be predictive validity. An actual driving test would be anexample of content validity. A pre-employment "in-basket" testrelies on content validity.

3. "Construct validity" has more to do with the realm of psychologythan employee selection. In this type of test the actual behaviourmeasured is assumed to represent a more abstract variable thatcannot be measured directly. Thus, the amount of time a rat spendson an activity wheel is taken to represent its activity level generally.

An employer would be well advised to validate in advance anyscored test that it proposes to use to screen large numbers of candidates.This was not done by the Public Service Commission (PSC) andRevenue Canada in Maloley.122 The GIT 320 was originally developedand put into use in 1964 and expanded in 1975. When the appeals ofthe particular staffing action were filed in 1984, the PSC had noempirical evidence that the test was valid for predicting future jobperformance as a collections clerk although after the appeals were filedthe PSC completed studies to support the test's validity. This raisedthe problem of "after the fact" evidence. In allowing the PSC to relyon after-acquired evidence the Chairman of the Board said:

122 Supra, note 111.

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If I may use an analogy from medicine, let us say that a weary surgeonunthinkingly adopted procedure A in preference to procedures B, C or Din an emergency situation, and it is agreed that in the end he made nomistake in so doing. While the risk he ran in perhaps not more fullydiagnosing the case and analysing whatever literature might be at handregarding the four alternatives [sic] procedures, may have been extremelyserious, there should be no complaint about his instinct or good luck inselecting the procedure which he did.123

The PSC relied on a concept called "validity generalization" thathad not even existed when the test was first used. According to thisnew notion among industrial psychologists, it is possible to generalizea test's validity for a particular use from demonstrated validity forsimilar uses. For instance, if one establishes that there is study afterstudy that proves that general cognitive ability and intelligence arevalid predictors of success in particular clerical jobs, ultimately one isable to postulate that cognitive ability and intelligence are valid pred-ictors of success in clerical jobs generally. Maloley was the test casefor the proposition that one could defend the staffing of a clerical jobby using a test which had not been validated for this purpose byreferring to studies of the validity of similar tests relating to similarclerical jobs.

Could one prove that cognitive ability and general intelligencewere valid predictors of success in clerical jobs generally? If so, theburden on the employers to prove that their pre-employment systemsdo not discriminate would be made a great deal simpler.

The Appeal Board approved the use of the validity generalizationapproach and accepted that the qualities of cognitive ability and generalintelligence were valid predictors of success for the job of collectionsenforcement clerk.

The next issue was whether this particular test was a reliablemeasure of general intelligence and cognitive ability. Expert evidenceestablished that the GIT 320 did measure cognitive ability and intelli-gence, but the PSC had to go further and demonstrate that in doingso it was not biased against women.

Since the respondent had not previously validated the test, it hadto arrange controlled sittings in which the test was given to male andfemale populations with the same characteristics. These populationshad to be large enough to permit statistical inferences to be made. ThePSC arranged sittings of the test at four secondary schools where itcould be assumed that the male and female students were of roughlythe same age, educational level and socio-economic background. Aswell, the test was given to selected groups of bureaucrats. The resultsfrom these controlled sittings showed no statistically significant differ-ences in the scores of men and women. In fact, in two sittings thewomen scored higher than the men.

123 Ibid. at 125.

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In addition, the PSC performed a comprehensive analysis of theprofiles of the males and females who applied for the collections clerkposition which showed there were significant differences in the twogroups. Particularly noteworthy was the fact that fifty-two per cent ofthe male candidates but only twenty-five per cent of the females hadhad some university education. The Board noted that the competitionfor collections clerk was closed; that is, only individuals already withinRevenue Canada could apply for the new position. Hence, the indivi-duals who applied were seeking a promotion within the Department.The individuals who wrote the test as part of the selection process hadbeen self-selected, whereas those in the control groups had not.

This point deserves emphasis. Data from the actual use of a pre-employment test will always relate to groups that have been self-selected. Therefore, it should not be inferred too quickly that statisticaldisparities in performance are due to test bias.

But why were the scores of the men who sought a promotion sodifferent from those of the women? The Board suggested the followingexplanation:

All these facts taken together make it extremely improbable, as faras I can see, that GIT 320 was the reason for the considerable differencefound between the performance of men and women. They make it quiteimprobable that GIT 320 was unfair to women. More probably, the maleand female groups of candidates were different in their respective levelsof cognitive ability, which leaves, of course, the puzzling question as towhy the men and women who actually applied in this competition wereso different in intelligence. But this is an entirely different matter, onewhich can be speculated upon but is of no concern to these appeals.124

The same would be true in a human rights case. An employerwould not have to explain test results, but merely prove that the resultswere not due to test bias. (Perhaps what would be needed to explainthe different results would be a series of interviews with the candidatesto determine their characteristics and their motivation in seeking thepromotion.)

One member of the Board chided the appellants for attempting toestablish that the test was sex-biased by use of statistical evidencealone. She was of the opinion that a content analysis of the test wouldbe required before any finding of sex-bias could be made. She said:

The second matter that I wish to address is the fact that both counsel forthe appellants and the witnesses which he called relied exclusively onstatistical data bearing upon the candidates' results to attempt to demon-strate that the GIT 320 was biased against women. They did not sub-stantiate their claim by referring to any questions of that test which mighthave been biased against women. I would be hesitant, in almost anycase, to subscribe to a contention that a test was biased towards a

124 Ibid. at 132.

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particular group if the only evidence presented in support of that conten-tion consisted of statistical data pertaining to the results obtained bypersons who had undergone that test. The Department responded to thiscontention by providing evidence which tends to clearly demonstrate thatthere is a significant difference in the average level of cognitive abilitybetween men and women who applied in this competition. The departmentalso provided evidence which tends to demonstrate that men and womenof equal ability who underwent a somewhat similar test, GIT 320,obtained comparable results. This evidence might not have sufficed torebut evidence which clearly demonstrated that particular test questionswere baised [sic] against women, had that evidence been presented bythe appellants. However, considering that the arguments presented by theappellants were based exclusively on statistical data and not on anyevidence that specific test questions were discriminatory, and consideringthe evidence which the department presented on this point, I find that ona balance of probabilities, the GIT 320 was not biased against women.125

Applications to have the decision of the Appeal Board set asidewere dismissed by the Federal Court, Appeal Division.126

In the author's view, the analysis of the Appeal Board may notbe complete from a discrimination viewpoint. The educational require-ment for the position being staffed was successful completion of twoyears of secondary school education or the equivalent thereof. Anunusually high cut-off score for the GIT 320 was used for this particularcompetition because the PSC expected a large number of candidatesand wished to reduce the number that would advance to subsequentstages of the selection process. With the high cut-off score the testeliminated a full two-thirds of the candidates from the competition.

Performance on a test of general cognitive ability correlatesstrongly to educational level. It may well have been that the high cut-off score became a proxy for an educational requirement beyond whatwas stipulated as necessary for the job. Again, men generally havehigher education levels than women. In fact, the PSC's own evidencewas that the men who wrote the test had higher educational levelsthan the women. The Appeal Board considered whether the cut-offscore was unreasonably high in terms of the merit principle andconcluded that it was not. It did not consider, however, whether thehigh cut-off score resulted in adverse effect sex discrimination. Theoutcome of such an analysis, of course, would depend on the data inthe particular case.

Maloley illustrates that the quality of statistical evidence must bevery good if it is used as the backbone of the case. On the other hand,ATF127 illustrates that inferior quality statistics are acceptable wherethey are ancillary to direct evidence of discrimination. The Tribunal

125 Ibid. at 137, Board Member Rabot.126 Roy v. Public Serv. Comm'n App. Bd. (5 November 1986), A-129-86

(F.C.A.D.) [unreported]; Maloley v. Public Serv. Comm'n App. Bd. (5 November1986), Ottawa A-130-86 (EC.A.D.) [unreported].

127 Supra, note 57.

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compared the proportion of women in blue collar positions in the St.Lawrence region of CN with the proportion of women in blue collarpositions nationally. The comparison of national data with regionaldata is questionable. There may well have been significant regionalvariances in the profile of the national workforce. Moreover, it iscertain that the national figure for blue collar workers was based on amuch wider range of occupations than existed at CN. There may wellbe particular industries with a high concentration of female blue collarworkers in occupations that do not exist in the railroad industry. Thesewould raise the national average but not provide a valid basis forcomparison to a quite different industry.

CN had argued that its positions were not attractive to womenbecause they involved shift work and travel away from home. Thenational figure used by the Tribunal was the average of all blue collarpositions. What were the national averages of women in blue collarpositions that involved shift work and travel? This type of de-aggre-gated statistic was not before the Tribunal. The Tribunal did, however,receive testimony from some fifty witnesses in thirty-three days ofhearings. Much of it was direct evidence from women who worked orhad applied to work at CN. Where there is direct evidence of discrim-ination, inferior statistics, albeit the best available, are acceptableevidence in establishing the case.

Mr. Justice MacGuigan in the Federal Court, Appeal Division128recognized that the statistical evidence was not precisely on point. Hewas of the view that hiring data was more germane than employmentdata. However, he took judicial notice of the fact that only the latterwas published, and stated that "[s]ince there was no other statisticalbasis available, there was therefore no other objective basis on whichthe Tribunal could have established its objective".129

MacGuigan J. canvassed other statistics that the Tribunal mighthave used as the basis of its mandatory affirmative action order. Hestated his opinion, however, that the figure used by the Tribunal"contains the irreducible minimum of unproveable assumptions andhence is the least arbitrary and most proportionate goal". 130

There are other cases which stress that statistical evidence ofdisparity should be professionally sound and should be buttressed bydirect evidence. In Mears v. Ontario Hydro'3' an Ontario Board ofInquiry considered the allegations of certain individuals that they hadbeen laid off because they were black. The Board had before itstatistical data relating to the racial composition of the group ofemployees laid off. However, no expert testimony had been called asto what inferences could be drawn from the data and what degree of

128 Supra, note 59.129 Ibid. at 122, 20 D.L.R. (4th) 668 at 688.130 Ibid. at 122, 20 D.L.R. (4th) 668 at 687.131 (1984), 5 C.H.R.R. D/1927 (Ont. Bd. Inquiry).

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certainty these inferences had. The Board lamented that such evidencehad not been called, but nevertheless admitted the data, indicating thatit would be considered with caution and given limited weight.132 TheBoard's decision was based on other evidence.

In Blake v. Ministry of Correctional Servs.,133 an Ontario Boardof Inquiry had before it statistical evidence which it thought sufficientto establish a prima facie case of discrimination on the basis of sex.However, in considering that evidence the Board said:

Statistics are best used in conjunction with testimony describing thespecific instances of discrimination. When individuals testify about theirpersonal experiences with the employer, they bring the "cold numbersconvicingly to life". . . . While statistics show the objective results ofdiscriminatory behaviour, anecdotal evidence describes the behaviour andbrings to light the causes of the statistically proven discriminatory re-sults .... Proof by oral testimony is particularly important in cases suchas those involving highly trained applicants for high-level positions orthose involving small companies with few employees where the labourpool of qualified persons or the number of persons hired is too small foradequate statistical study....134

On the basis of oral testimony the Board dismissed the complaint,being satisfied that the complainant had not been personally discrimi-nated against.135 The case is another illustration of how even soundstatistics of disparity can be explained by employers.

It is even possible for employers to justify tests that admittedlyresult in disproportionate exclusion of a particular group.

The Tribunal in ATE136 inquired into the complaint of a Montrealwomen's group that CN's employment practices prevented womenfrom being hired for non-traditional jobs. The employment selectionprocess included the Bennett Mechanical Comprehension Test (BennettTest). The evidence before the Tribunal established that the BennettTest is a reliable measure of mechanical aptitude and the scientificliterature recognizes that women as a group score lower than men asa group on the Bennett Test. This was certainly true in CN's case.However, the total number of women applicants was small and strongstatistical inferences were not possible.

The important point is that the respondent had never validatedthe use of the Bennett Test for the positions being staffed. Since thetest disqualified women disproportionately, and since there was noevidence to establish that it was job related, the Tribunal found itconstituted prima facie discrimination and ordered that the employerstop using the test in the selection process for entry level positions.

132 Ibid. at D/1936.133 (1984), 5 C.H.R.R. D/2417 (Ont. Bd. Inquiry).134 Ibid. at D/2426.135 Ibid. at D/2432.136 Supra, note 59.

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The Tribunal was satisfied that the test was both a reliable measure ofmechanical aptitude and a valid predictor of success in jobs involvingmechanical aptitude. However, the employer did not satisfy the Tribunalthat mechanical aptitude was necessary for the entry level labouringjobs that were being staffed so the test was not valid for that particularuse. If the test were being used to choose staff for a job that requiredthe type of mechanical aptitude it measured, however, the test wouldthen be both reliable and valid even though women as a group wouldstill score lower than men as a group. In fact, the Tribunal expresslystated that its order prohibiting further use of the Bennett Test did notapply to the staffing of apprentice positions which required mechanicalaptitude. 137

The case of Malik v. Ministry of Gov't. Servs., 138 an OntarioBoard of Inquiry decision, illustrates that the systemic approach is notsuited to all cases. Mr. Malik lost a competition for a job. Hiscomplaint alleged that the interview procedure used to choose thesuccessful candidate systematically discriminated indirectly against himon the basis of his race, ancestry and place of origin. He was of EastAsian origin. He had been employed by the Ministry on a contractbasis for some four years when a permanent position became available.The selection board, composed of three interviewers, sat informallytogether and asked each candidate questions for some fifteen to twentyminutes. On the basis of this selection procedure Mr. Malik was rankedeleventh out of twelve candidates. His job performance while oncontract was fully satisfactory. The complainant received low scoresin expression, initiative and personal characteristics. The Commissioncalled expert testimony that the complainant's ethnic background se-riously disadvantaged him in this apparently neutral interview. TheBoard summarized the expert's testimony:

[A]n individual of Mr. Malik's background would assume a very defer-ential, non-assertive, low key approach. The assessment procedure wouldmake him feel his inferior and subordinate position and react accordingly.In a work environment, the person of Mr. Malik's ethnic and culturalbackground thinks that by being non-assertive and simply doing his smalljob without anything further, he would demonstrate his loyalty to hissuperior. In exchange for that loyalty, he would expect to be cared forand protected. 39

However, two of the highly ranked successful candidates werealso of East Asian origin. The Board quoted from the expert's testi-mony on this point:

[Wihile I would have to admit as you suggest that obviously there isroom for individual difference, and not every individual Pakistani would

137 Ibid. at D/2414.138 (1981), 2 C.H.R.R. D/374 (Ont. Bd. Inquiry).'39 Ibid. at D/377.

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react in quite that way, clearly on the other hand the tightness, theintensity, the rigidity of that stratification system, and what it involvesfor the individual, for the personality if you will, is so strong that in thiskind of culture/personality interaction I would give an awful lot of weightto the cultural aspects.140

There was one other East Asian candidate who was clearly unqualified,and this left the complainant as a group of one. In the absence ofstatistical evidence the Board was left with only the expert testimony.The Board concluded: "One must show something more than this inorder to show indirect discrimination arising from a superficially neutralrequirement". 141

As well the Board had difficulty with the suggestion that thecomplainant's culture and upbringing made him poorly suited to per-form while in an interview. The Board said:

By suggesting that the interview result be invalidated because of itsnegative cultural implications, counsel for the Commission is indirectlyasking that the employer be told to design its selection mechanism in away that would be sensitive to the strengths and weaknesses of applicants... . How the employer is to ensure a sufficient degree of evenhandedness, given the inability to ascertain this information, was notelaborated upon. Similarly, even if he or she knew the exact compositionof the applicant pool, it would be necessary to have in addition sensitiveand accurate information about the strengths and weaknesses of eachculture. How to prevent the intrusion of stereotype and assumption, andhow to ensure that the selection mechanism is fair for each, differentlycomposed, applicant pool without being prohibitively costly, are additionalproblems upon which we were not enlightened by counsel. Lastly, it issurely inevitable that someone whose culture and upbringing made himor her particularly suited to the interview format could complain if hewere denied access to it because of the accident of the cultural compo-sition of the group of his fellow applicants on a particular occasion. 142

Finally, the Board found that the group alleged to be disadvan-taged should be clearly defined. Here, successful candidates of thesame ethnic origin were asserted not to be members of the groupbecause of their individual characteristics. The Board said:

In this case, the group is very ill defined; its boundaries depend onintangibles like "upbringing", "culture", the degree of modernization orWesternization in a person's country of origin, and the length of time inCanada. All in all the policy and factual basis for acceding to an argumentof indirect discrimination here is just too remote. 143

Thus complaints of this sort will only be possible where the selectionprocess screens sufficiently large numbers of persons to permit statis-

140 Ibid.141 Ibid. at D/378.142 Ibid. at D/378-79.143 Ibid. at D/379.

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tical inferences. Only then can the group alleged to suffer discrimi-nation be identified with any precision.

The use of statistics in complaints of discrimination is certain tobecome more prevalent. The Employment Equity Act 44 will require allfederally regulated employers of more than 100 employees to file datawith the federal government concerning the make-up of their workforces. This data will be available to the Canadian Human RightsCommission which can use it to initiate complaints of discrimination.

V. BONA FIDE OCCUPATIONAL REQUIREMENT

Human rights legislation generally allows employers to justifyprima facie discrimination by establishing that there are reasonablegrounds to justify it. 145

The Supreme Court of Canada set out the test of what constitutesa bona fide occupational requirement (BFOR) in the case of OntarioHuman Rights Comm'n v. Etobicoke.146 The Supreme Court of Canadastated:

To be a bona fide occupational qualification and requirement a limitation,such as a mandatory retirement at a fixed age, must be imposed honestly,in good faith, and in the sincerely held belief that such limitation isimposed in the interests of the adequate performance of the work involvedwith all reasonable dispatch, safety and economy, and not for ulterior orextraneous reasons aimed at objectives which could defeat the purposeof the Code. In addition it must be related in an objective sense to theperformance of the employment concerned, in that it is reasonablynecessary to assure the efficient and economical performance of the jobwithout endangering the employee, his fellow employees and the generalpublic. 147

The period under survey saw considerable development of the juris-

prudence applying this general test.

A. Personal Privacy and Dignity

Two cases have determined that personal preferences in mattersrelating to intimate personal matters will provide the basis for a bonafide occupational requirement. In Re McKale and Lamont Auxiliary

-" S.C. 1986, c. 31, ss. 3,6.145 See, e.g., Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 14(a), as

am. S.C. 1981-82-83, c. 143, s. 7.146 (1982), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14 [hereinafter Etobicoke].

For a discussion of this case, see the last survey, supra, note 58 at 123.147 Ibid. at 208, 132 D.L.R. (3d) 14 at 19-20.

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Hosp. ,148 the Alberta Court of Queen's Bench confirmed the decisionof a Board of Inquiry under the Individual Rights Protection Act149 ofAlberta that the preferences of male residents of a nursing home tohave their intimate needs taken care of by a male allowed the hometo establish that being male was a bona fide occupational requirementfor the job of nursing attendant. The job involved bathing residents,observing them while they used the toilet, and cleaning up afterresidents who had soiled themselves. A woman had been deniedemployment as a nursing attendant in favour of a less qualified male.

Mr. Justice Picard concluded that the home's policy of hiringmales only was necessary in order to treat patients with respect anddignity. More importantly though, the Court found that the claim of apatient to intimate personal care by a nursing attendant of the samesex had a basis in the patient's contract with the institution. Thus, ineffect, the Court found that customer preference was a defence. Mr.Justice Picard held that this customer preference was reasonable interms of public expectations and expert opinion. 150

The second case which considered the issue of personal prefer-ences, Stanley v. RCMP,151 was decided by a Tribunal under theCanadian Human Rights Act. Several women had filed complaints ofsex discrimination after the RCMP policy of hiring male guards formale prisoners in RCMP lockups had been applied to them. TheTribunal found that in the performance of their regular duties femaleguards in RCMP lockups are bound to observe at least some maleprisoners in states of undress and using the toilet.

The Tribunal suggested a structured approach in applying theEtobicoke test: The first step in this approach is to identify the interestthat the respondent is seeking to protect and to determine whether itis legitimately and rationally related to the impugned requirement,given the nature of the employment.152 The second step in applyingthe subjective component of the Etobicoke test is to determine whetheror not the requirement is imposed for ulterior or extraneous reasonsaimed at objectives which could defeat the purpose of the legislation. 153

The Tribunal's structured approach to the objective component ofthe Etobicoke test calls for consideration of the following questions:1. How important is the interest the requirement seeks to protect?2. To what extent is it furthered by the impugned policy?3. What harm does the policy do to the interest and equality of

opportunity?

148 (1987), 37 D.L.R. (4th) 47, [1987] 3 W.W.R. 748 (Alta. Q.B.).149 R.S.A. 1980, c. 1-2, ss. 7(1), (3), as am. S.A. 1985, c. 33, ss. 2, 3.15o Supra, note 148 at 61, [1987] 3 W.W.R. 748 at 762.151 (1987), 8 C.H.R.R. D/3799 (Can. H.R. Trib.).152 Ibid. at D/3810.153 Ibid. at D/3811.

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4. Are there any other interests on which the complainants are entitledto rely and, if so, what weight should they be given?

5. Which set of interests prevails, that relied on by the respondentsor that relied on by the complainants?

6. Are there any reasonable alternatives to the policy open to therespondent?

With respect to question one, the Tribunal concluded that theinterest in inmate privacy was of compelling importance and one towhich a great deal of weight should be given.154 Inmate privacy wasprovided by the same sex guarding policy. The Tribunal consideredthat even those male inmates who were not actually viewed in statesof undress and while using the toilet by female guards were bound tosuffer some anxiety and loss of personal dignity in using their bestefforts to avoid being so viewed.

Since the policy was, in effect, to bar females from employmentas guards, the Tribunal concluded that it had a clear and significantharmful effect on the interests of equal opportunity. However, theTribunal went on to note that the basis on which the RCMP defendedits policy had nothing to do with the ability or perceived ability offemales to guard male prisoners. The policy was devoid of any assaulton the dignity of women such as would flow from a policy that wasbased on assumptions about the relative worth or abilities of men andwomen.

With respect to question four, it was argued on behalf of thecomplainants that the presence of women in lockups would have otherbeneficial effects: the improvement of decorum, the reduction of ten-sion and aggressive behaviour, and the facilitation of the rehabilitationof prisoners. The complainants were, however, unable to adduce evi-dence to support these arguments and the Tribunal noted that carefullyselected and trained males could be sensitive to the need to reducetension and aggression. Ironically, the complainants' argument on thispoint seemed to be based on stereotypes of the relative characteristicsof men and women.

The Tribunal based its decision that the interest in personal privacyprevailed over the interest in equal opportunity on its own independentbalancing of the competing interests. While the observations of maleprisoners by female guards would be "infrequent and incidental", theTribunal explained its conclusion:

I think it would be wrong to hold that we as a society are prepared tosacrifice the dignity of the prisoners who would be viewed simply becausethey may represent a relatively small proportion of all the prisoners whoare held in the lock-ups. In circumstances such as this, the focus mustsurely be on the individual, not on the class of prisoners as a whole.Insofar as the degree of intrusiveness of the viewing is concerned, no

154 Ibid. at D/3818.

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one can doubt that the loss of dignity is greater when one is scrutinizedfor several minutes than it is when one is scrutinized for several seconds.But, as I have pointed out above, even in the latter circumstance, theloss of dignity is real and substantial. It is important to remember that itis essential for the guards in R.C.M.P. lock-ups, which everyone acceptsare high risk facilities, to make a careful check of each prisoner on eachtour of observation regardless of what it is that the prisoner happens tobe doing or wearing at the time.

I have not underestimated the importance of the interest in equality ofopportunity or the extent to which it is harmed by the R.C.M.P.'s same-sex guarding policy. That interest, as I have indicated above, is one thatshould prevail in the great majority of cases, particularly when the groupbeing discriminated against is a group that, like women, has suffered ahistory of discrimination in the workplace. However, it is apparent fromthe very fact that the CHRA includes a provision allowing for the BFOR[bona fide occupational requirement] defence that Parliament did notintend that that interest should always prevail. It recognized that therewould be exceptional cases in which that interest would have to besacrified in favour of other competing interests. In my view, this is oneof those exceptional cases. The fact that contributes most to making thissuch a case is the importance of the competing interest here, the interestin inmate privacy. 55

Finally, the Tribunal found that there were no viable alternatives to thepolicy. 156

B. Customer Preference

The privacy cases illustrate only one exception to the principlethat customer preference is no defence. In Canada Safeway Ltd. v.Manitoba Food and Commercial Workers Union, Local 832,157 theManitoba Court of Queen's Bench reversed the decision of a board ofadjudication under Manitoba's The Human Rights Act158 which foundthat the company's "no beards" policy discriminated on the groundsof sex. The Board had found that the policy could not be supportedfor reasons of employee safety or consumer health. Ms. Steel, theadjudicator, also refused to accept the evidence of consumer preferenceas being a valid consideration in the determination of whether thereexisted a "reasonable occupational qualification" within the meaningof subsection 6(6) of the Act. 159 Mr. Justice Wright, on the other hand,found nothing in the Act to suggest "that market forces are not to beconsidered. If the evidence from that source reveals discriminatory

155 Ibid. at D/3829.156 Ibid. at D/3830.157 (1984), 27 Man. R. (2d) 79, 5 C.H.R.R. D/2133 (Q.B.).158 S.M. 1974, c. 65, C.C.S.M. H175.159 Supra, note 157 at 103, 5 C.H.R.R. D/2133 at D/2144.

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thinking by the public, I find no prohibition to the presentation of suchevidence, or its utilization for the purpose of interpreting 'reasonableoccupational qualification' ".160

While Mr. Justice Wright's reasoning is broadly based and wouldapply to customer preferences generally, it is important to note, asdiscussed in the case, that the public perception may have been basedon the incorrect suppostion that hair from beards falls in food. There-fore, customer preference was not prejudicial in the sense that membersof the public preferred to be served by one gender rather than theother. Instead the preference was related more to perceptions of publichealth.' 6' The Court of Appeal did not deal with this issue explicitly. 162

In considering the same question, the Tribunal in Stanley v.RCMP 163 drew a distinction between a customer preference based solelyon prejudice and other preferences. The Tribunal incorporated thecustomer preference consideration into its BFOR inquiry by adding thestipulation that each interest that the employer wished to advance notonly be rationally related to the impugned requirement but also be"legitimate". The Tribunal formulated the objective component of theBFOR test as follows: "that the impugned requirement, objectivelyviewed, is reasonably necessary to protect or further interests whichthe respondent can legitimately and rationally seek to protect or further,given the nature of the employment in question". 164

The Review Tribunal in Cashin v. CBC165 took much the sameapproach. The Review Tribunal decided that the CBC was entitled toconsider that its listening audience might not consider the complainantreporter to be totally objective because of her marriage to a publicfigure. The Tribunal stated that the CBC would not be entitled to relyon an audience perception that was irrational and unreasonable. How-ever, so long as the apprehension of bias arising in the circumstanceswas understandable in the minds of right thinking individuals, then therespondent's concern was justifiable.

The Review Tribunal in Cashin also commented on Mr. JusticeMcIntyre's remarks in Etobicoke about impressionistic evidence: "Acareful reading of Mr. Justice McIntyre's remarks in the Etobicokecase, supra, does not lead one to the conclusion that in all casesimpressionistic evidence is to be rejected out of hand.''166

In Etobicoke medical evidence could be adduced since there hadbeen a body of substantial and continuing research in the area. How-

160 Ibid.161 Ibid.162 Canada Safeway Ltd. v. Steel (1984), 13 D.L.R. (4th) 314, 29 Man. R.

(2d) 154 (C.A.).163 Supra, note 151 at D/3811.164 Ibid.165 (1987), 8 C.H.R.R. D/3699 (Rev. Trib.) [hereinafter Cashin].166 Ibid. at D/3706.

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ever, in Cashin, objective evidence would only be possible if therespondent were to conduct an experiment by putting the broadcasteron the air for a period of time and then surveying the listening audienceas to its perception of that individual. The respondent pointed out thatin order to obtain such evidence it would have to experiment with itsown credibility and take the chance of adverse audience reaction whilethe study was being conducted. This, the Tribunal decided, it was notobliged to do.167

C. Public Safety

Employers may exclude individuals with certain physical condi-tions from employment for reasons of safety. If the respondent's policy,as is often the case, has always been in place there will be no objectiveor statistical evidence to quantify the risks. In order to obtain suchevidence it would be necessary for the respondents possibly to com-promise safety and possibly to endanger the complainant, co-employ-ees, or the public. The Cashin decision indicates that in such a casethe Board must decide the matter on the evidence that is availableeven if it is somewhat impressionistic.

An example of such a case is the crucially important decision ofthe Federal Court, Appeal Division in C.P. Ltd. v. Canadian HumanRights Comm'n.168 The complainant Mahon was a diabetic who wasdependent on a daily injection of insulin. His condition was stable. Heapplied for the position of "trackman" with the respondent and theTribunal found as a fact that the position required alertness, strength,and dexterity. As well, five per cent of the duties of trackmen weresuch that co-workers or the general public would be put at risk if atrackman were to be incapacitated while performing them.

The extensive medical evidence established that even stable dia-betics could, unpredictably and without any warning symptoms, ex-perience a neuroglycopenic reaction. Such a reaction would affect thecentral nervous system and manifest itself by disorientation, loss ofcoordination, dizziness, confusion, lack of good judgment and, ulti-mately, loss of consciousness. The Tribunal found that the medicalevidence established that the chances of a stable diabetic like thecomplainant suffering such a reaction was 0.2 per cent. 169 In theabsence of objective evidence, it was left to make inferences regardingthe quantum of risk to safety. The Tribunal said:

How does one quantify the added degree of risk? Given the evidence inthis case, I would infer that the odds are in a nature of at least 500 to I

167 Ibid.163 (1987), 8 C.H.R.R. D/4263.169 Mahon v. C.P. Ltd. (1986), 7 C.H.R.R. D/3278 (Can. H.R. Trib.) [here-

inafter CP].

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against the possibility of Mr. Mahon having a neuroglycopenic reaction(without first having an adrenergic reaction) at any time. Moreover, Iwould estimate that from a working time standpoint, five per cent of Mr.Mahon's working time, at most, might constitute situations where, if hehad a neuroglycopenic reaction, he might endanger himself, his co-workers or the public.

Making such inferences from the evidence, we are left with anindividual as a Complainant who has at most a .2 per cent chance ofever having a neuroglycopenic reaction due to events beyond his control,which would have to occur specifically within about 5 per cent of hisworking time for his debilitation due to the reaction to constitute anydanger to persons or property. That is, the odds are roughly some 10,000to I against Mr. Mahon (given no other changes in his health) having aneuroglycopenic reaction during a situation where he, co-workers or thepublic might suffer injury.170

The Tribunal made reference to Mr. Justice McIntyre's remarkthat to determine whether a BFOR exists the Court must considerwhether the evidence justifies the conclusion that there is sufficient riskof employee failure to warrant the requirement in the interests ofsafety. The Tribunal understood from this passage that its task wastwo-fold: First, it had to determine the quantum of the probability ofaccident and injury due to the disability and, second, it had to makea judgment as to whether the level of additional risk to safety wasacceptable. It said that "an 'insufficient risk' will not constitute aBFOR defence for the employer".17, The Tribunal went on to concludethat the additional risk posed by the employment of the complainantwas not sufficient to establish a BFOR.172

The Federal Court, Appeal Division reversed the Tribunal's de-cision, strongly disagreeing with its interpretation of the Etobicoketest. The Court stated: "a job-related requirement that, according tothe evidence, is reasonably necessary to eliminate a real risk of aserious damage to the public at large must be said to be a bona fideoccupational requirement". 173 Any real increase in risk, no matter howslight, provides the basis for a bona fide occupational requirement.74The Court was emphatic that the law does not impose any duty onemployers and the public to accept and assume some risks of damagein order to enable disabled persons to find work. The Court cited theSupreme Court's decision in Bhinder v. C.N.R. 175 as authority for itsdecision. In Bhinder the Supreme Court had upheld as a bona fideoccupational requirement a requirement which if not complied withwould have exposed Mr. Bhinder to only a "slightly greater" risk of

170 Ibid. at D/3304.171 Ibid.172 Ibid. at D/3305.173 Supra, note 168 at D/4267, Pratte J.174 Ibid.175 Supra, note 3.

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injury. Mr. Justice Marceau explained McIntyre J.'s reference to "suf-ficient risk of employee failure" in the following way:

When I read the phrase in context, however, I understand it as beingrelated to the evidence which must be sufficient to show that the risk isreal and not based on mere speculation. In other words, the "sufficiency"contemplated refers to the reality of the risk not its degree.' 76

The Canadian Human Rights Commission's application for leaveto appeal to the Supreme Court of Canada was refused.

In City of Moose Jaw v. Saskatchewan Human Rights Comm'n, 177

Mr. Justice Matheson of the Saskatchewan Court of Queen's Benchwas reviewing the decision of a Board of Inquiry that substantiated acomplaint from a firefighter that his mandatory retirement at the ageof sixty-two was discriminatory. The Board had described the test asfollows:

It is the Board's view that the case law establishes that it is still necessaryfor the employer to show that all members of the restricted class (in thiscase, those over 62 and eventually over 60) have the intolerable charac-teristic or that the incidence in that group was so great and not sufficientlyidentifiable as to make the risks from continuing to employ members ofthe group intolerable in the circumstances. 178

The reviewing Court, while understanding the words "sufficient risk"as did the Tribunal in the CP case, pointed out that there was asignificant difference between "sufficient risk" and "intolerable risk".Furthermore, in arriving at its conclusion, the Board had stated that"[t]he respondents have not convinced this Board that there is sufficientrisk of employee failure". 179The Court was of the view that under theEtobicoke test the burden on the employer was not to "convince" theBoard, but merely to establish its position was reasonable on a balanceof probabilities. 180

There is support for the Court's position in Roger v. CNR. 181 TheTribunal dismissed Roger's complaint that he was discriminated againstbecause of a handicap when he was removed from his position aftersuffering a seizure at work. Like the Court in the City of Moose Jawcase, the Tribunal was of the view that the onus on an employer underthe Etobicoke test is not to establish that its position is correct by soconvincing the Board, but, rather, merely to establish that its positionis reasonable. In Roger, the Tribunal said:

176 Supra, note 168 at D/4268.177 (1984), 33 Sask. R. 105, 5 C.H.R.R. D/2205 (Q.B.).178 City of Moose Jaw v. Moose Jaw Firefighters Ass'n. (1 November 1983),

(Sask. Bd. of Inquiry) [unreported] [hereinafter City of Moose Jaw].179 Ibid.180 Supra, note 177 at 109, 5 C.H.R.R. D/2205 at D/2207.18, (1985), 6 C.H.R.R. D/2899 (Can. H.R. Trib.) [hereinafter Roger].

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Given the absence of reliable information on the risk of recurrence ofseizures in persons like Roger and given the public safety element in hisposition which reduces the acceptable level of risk, one cannot readilyconclude that the position taken by CN was unreasonable. Thus theredoes not appear to be any sound basis for interfering with its judgmentin this regard. Accordingly the complaint must be dismissed.182

While the CP case involved a slight increase in risk to co-workersand the public as well as to the complainant, the case of Loveday v.Baker Mfg. Ltd. 183 involved risk only to the complainant himself. Thecomplainant had suffered previous back injuries and had applied foremployment which involved lifting heavy objects. Medical evidenceindicated that there was additional risk that he would re-injure hisback. It was contended on the complainant's behalf that he had theright to assume the risk of injury to himself. In confirming the decisionof the Board of Adjudication under Manitoba's human rights statute,Mr. Justice Morse of the Court of Queen's Bench said that "[no]employee has the right to risk serious injury to himself, and noemployer should be required to employ someone whose physicalcondition subjects him to the risk of more than trivial injury".84 TheBhinder case suggests that the Supreme Court of Canada is of thesame view.

The writer suggests that a useful approach is to assess the addedrisk faced at the workplace by a handicapped person as compared tothe risk he or she faces in day-to-day life. An individual confined toa wheelchair who is employed in an office tower faces an additionalrisk in case of fire when elevators do not operate. Such an individual,however, if he or she lives in a high-rise apartment building, or travelsin a bus, train, or plane, routinely faces additional risks shouldevacuation prove necessary. It is respectfully submitted that Mr. JusticeMorse's ruling in Loveday should be confined to those risks that areparticularly present in the workplace and which do not exist in ahandicapped person's daily life.

VI. PREGNANCY AND SEX DISCRIMINATION

The last survey reviewed the development of the jurisprudencerelating to the issue of whether discrimination based on pregnancyconstitutes sex discrimination. I concluded that jurisprudence at theadministrative tribunal level sought to distinguish the Supreme Court

182 Ibid. at D/2907.183 (1984), 30 Man. R. (2d) 116, 7 C.H.R.R. D/3145 (Q.B.) [hereinafter

Loveday].184 Ibid. at 119-20, 7 C.H.R.R. D/3145 at D/3146.

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of Canada's decision in Bliss v. A.G. Canada'8 5 on the basis that itsreasoning related to the principle of "equality before the law" underthe Bill of Rights186 and not on discrimination under human rightslegislation. The courts, however, have tended to apply the Bliss deci-sion to cases under human rights legislation.

Administrative boards continue to find that discrimination basedon pregnancy is sex discrimination. 187 The Manitoba Court of Queen'sBench, however, determined that the prohibition contained in thatProvince's human rights statute of discrimination on the basis of sexdoes not prohibit discrimination on the basis of pregnancy.S8

The Supreme Court of Ontario seems to have tacitly accepted thatpregnancy discrimination is sex discrimination in Re London Life Ins.Co. and Ontario Human Rights Comm'n.189 Patricia Skidmore was apregnant working woman. She did not apply for and was not on leaveof absence for pregnancy reasons, but rather continued to work. Shebecame disabled by a medical problem unrelated to the pregnancy andclaimed disability benefits under a group plan provided by her em-ployer. She was refused benefits because the plan contained the follow-ing limitation:

No benefits will be paid during the period an employee is on a pregnancyleave of absence, or during the period an employee could elect, or beplaced on, such leave of absence under the usual employment practicesof the Employer or the relevant law, if she were eligible for such leaveof absence, but benefits will be paid for pregnancy related illness up tothe tenth week prior to the expected week of confinement and followingpregnancy leave of absence according to the provisions of this Policy andany applicable law.190

The complainant was eligible for pregnancy leave of absence underPart XI of the Employment Standards Act. 191 Her complaint was basedon the ground of sex.

It is to be noted that the Ontario Code does not define "sex" toinclude pregnancy.192 Subsection 24(2) of the Code does, however,allow discrimination by a contract of group insurance between aninsurer and an employer "that complies with the Employment StandardsAct and the regulations thereunder". The Employment Standards Act

185 (1978), [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417 [hereinafter Bliss].186 S.C. 1960, c. 44, s. 2(e), reprinted in R.S.C. 1970, App. Inl.187 See Hollaway v. McDonald (1983), 4 C.H.R.R. D/291 (B.C. Bd. of

Inquiry); Paton v. Brouwer & Co. (1984), 5 C.H.R.R. D/1946 (B.C. Bd. of Inquiry);Giouvanoudis v. Golden Fleece Restaurant (1984), 5 C.H.R.R. D/1967 (Ont. Bd. ofInquiry).

188 Brooks v. Canada Safeway Ltd. (1985), 38 Man. R. (2d) 192, 7 C.H.R.R.D/3185 (Q.B.).

189 (1985), 50 O.R. (2d) 748, 6 C.H.R.R. D/2891 (S.C.).190 Ibid. at 750, 6 C.H.R.R. D/2891 at D/2892.191 R.S.O. 1980, c. 137.192 Human Rights Code, 1981, S.O. 1981, c. 53.

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prohibits a distinction, exclusion or preference between employeesbecause of sex "except as provided in the regulations". 193 Regulation282, subsection 8(c), permits the "exclusion from benefits under ashort or long term disability insurance plan of a female employeeduring the period of leave of absence to which she is entitled"1g4because of her pregnancy.

Mr. Justice Steele found that the limitation provision contained inthe contract was invalid but his reasoning is not clear. In his judgmentthere is no discussion of the fact that the exclusion applied to pregnantwomen and not all women. He seems to have simply assumed thatthe exclusion was based on "sex". He did not refer to the SupremeCourt of Canada's decision in the Bliss case. Steele J. reasoned thatsubsection 8(c) of Regulation 282 did not apply to save the clausebecause a woman did not become "entitled" to a pregnancy leave ofabsence until she had applied for one. Since Skidmore had not applied,she had not become entitled, and therefore the contract was not savedby subsection 8(c) of the Regulation.95 Mr. Justice Steele concludedthat "the provisions of the contract are invalid in so far as they refusebenefits during the period in which an employee could elect to be onleave of absence but is not in fact on leave of absence".196 This resultcould not have been arrived at without tacitly accepting that pregnancydiscrimination is sex discrimination.

Two other cases in which Boards of Inquiry have held thatpregnancy discrimination constitutes sex discrimination are Stefanyshynv. Four Seasons Mgmt. Ltd. 197 and Davies v. Century Oils (Canada)Inc. 198 The latter case is interesting because the Board found that thecomplainant had been discriminated against on the basis of sex whenshe was not hired for a clerical job because she was pregnant. At thejob interview the complainant had indicated she would be able to workfor approximately two months. In finding for the complainant theBoard held that the respondent had not proved that the cost of findingand training a replacement during the complainant's expected maternityleave, was a bona fide occupational requirement. In support of itsposition, the Board quoted the British Columbia Board of Inquiry inGibbs v. Board of School Trustees, School District No. 36 Surrey:

women should not be granted equal treatment in the work force only onthe condition of and at the price of denying their role as mothers. If onlythe woman who never becomes pregnant is treated equally, then womenas a class have been denied their full humanity, their right to choose tofill their biological role of growing the next generation. It is the same as

193 R.S.O. 1980, c. 137, s. 34(2).194 R.R.O. 1980, Reg. 282, s. 8(c).195 Supra, note 189 at 753-54, 6 C.H.R.R. D/2891 at D/2893.196 Ibid. at 754, 6 C.H.R.R. at D/2893.197 (1986), 8 C.H.R.R. D/3934 (B.C. Council of Human Rights).198 (1986), 8 C.H.R.R. D/3770 (B.C. Council of Human Rights).

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saying to women - if you want to be equal, then you must be the sameas men and not have babies. That is not equal treatment and equal respectfor every person regardless of sex.199

The efforts of pregnant women to obtain coverage under employeesickness and accident policies met with mixed success in the periodunder survey. The London Life case discussed above is one example.In Brooks v. Canada Safeway Ltd. ,200 three women complained ofdiscrimination on the basis of sex and family status under Manitoba'shuman rights statute20' when they were denied benefits under a short-term disability plan that covered accident and illness. The ManitobaCourt of Queen's Bench upheld the adjudicator's finding that TheHuman Rights Act did not prohibit discrimination by reason of preg-nancy was correct. The Court said that " 'family status' was not theissue. The term 'family status' concerns the question of status and notwhether a member of a family unit as defined in the Act is pregnant."202

Not surprisingly, the Court relied on the Supreme Court of Canadadecision in Bliss203 for the proposition that discrimination because ofsex is not equivalent to discrimination because of pregnancy. The Courtsaw "no other conclusion in the absence of an expanded statutorydefinition which is not found in the Human Rights Act".204

In Winterburn v. Lou's Place205 an Ontario Board of Inquiryrefused to follow the Bliss decision, preferring the reasoning of theFederal Tribunal decision in Tellier-Cohen v. Treasury Board.206 TheBoard held that:

The Ontario Human Rights Code should be given a liberal interpretationand that sex discrimination should be interpreted to mean discriminationbecause of pregnancy. . . . Since only women can become pregnant,discrimination because of pregnancy obviously can affect only womenand can never affect men; therefore, discrimination because of pregnancyis simply one approach which discrimination on the ground of sex cantake.

20 7

The complainant's allegation was that her pregnancy was a factor inher employer refusing to grant her alternative employment.

In a decision that was rendered about the same time, Giouvanoudisv. Golden Fleece Restaurant,2 8 Professor Peter Cumming, sitting asan Ontario Board of Inquiry, exhaustively canvassed the debate as to

199 (1978) (B.C. Bd. of Inquiry) [unreported].200 Supra, note 188.20, The Human Rights Act, S.M. 1974, c. 65, C.C.S.M. H175.202 Supra, note 188 at 196, 7 C.H.R.R. at D/3188, Simonsen J.203 Supra, note 185.204 Supra, note 188 at 197, 7 C.H.R.R. at D/3188.205 (1984), 5 C.H.R.R. D/2052 (Ont. Bd. of Inquiry).206 (1982), 3 C.H.R.R. D/792 (Can. H.R. Trib.).207 Supra, note 205 at D/2056.208 Supra, note 187.

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whether discrimination on the basis of pregnancy constitutes discrimi-nation on the basis of sex. The issues were addressed in the contextof a sexual harassment complaint. The learned Chairman reasoned thatsexual harassment constituted discrimination on the basis of sex.Readers may find his review of the law useful.

VII. INCITEMENT TO DISCRIMINATION

It is standard for human rights legislation in Canada to containprovisions that prohibit a person from publishing or displaying beforethe public any notice, sign, symbol, emblem or other respresentationthat incites others to discriminate or which may be likely to tend todeprive persons or classes of persons of any right which they areguaranteed.29 Subsection 2(1) of Manitoba's The Human Rights Act isone such provision.210 In Warren v. Chapman,211 the respondent hadwritten an article that the complainants argued defamed native Indianpeople. The Board had substantiated the complaint but the ManitobaCourt of Queen's Bench held that the words "notice, sign, symbol,emblem or other representation" did not include a newspaper articleor editorial. An emblem was merely an object or picture of one. Anotice was a sign or placard which contained mere brief mention inwriting. A sign was a mark or device having some special meaning.A symbol was something that stands for, represents or denotes some-thing else. A representation was an image, likeness or reproduction ofa thing. While the word "representation" was susceptible of a muchwider meaning, it had to be read in ejusdem generis with the wordsthat preceded it.

Section 14 of the Saskatchewan Code212 is broader than thestandard provision in that it prohibits the publishing or displaying ofsuch notices and signs that expose or tend to expose to hatred, ridicule,belittle, or otherwise affront the dignity of any person or class on aprohibited ground of discrimination.

The Saskatchewan Human Rights Commission initiated a com-plaint against the Engineering Student Society of the University ofSaskatchewan under section 14 of The Saskatchewan Human RightsCode, alleging that the engineering student newspaper, The Red Eye,had published articles and pictures that ridiculed, belittled and other-

209 The constitutionality of such provisions has been questioned. See W.S.Tarnopolsky, DISCRIMINATION AND THE LAW IN CANADA (Toronto: Richard De Boo,1982) at 237-38.

210 S.M. 1974, c. 65, C.C.S.M. H175.211 (1984), [1984] 5 W.W.R. 454, 5 C.H.R.R. D/2226 (Man. Q.B.), affid

(1985), [1985] 4 W.W.R. 75, 6 C.H.R.R. D/2777 (C.A.) [hereinafter Warren].212 The Saskatchewan Human Rights Code, S.S. 1979, c. S-24. 1.

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wise affronted the dignity of women because of their sex. The Ministerappointed a Board to inquire into the Commission's complaint. TheBoard found that the "ridicule" took the form of allegedly humourousdescription or depiction of the violent destruction of women's bodiesthrough sexual intercourse. Women were "belittled" because they weredepicted as mere objects to gratify male sexual desires.213

On appeal,214 the Saskatchewan Court of Queen's Bench foundthat the Board assumed the Code gave "all women resident in Sas-katchewan the right not to be discriminated against by reason of theirsex by means of hate literature and group defamation".215 If the Codewere to be interpreted in such a way, it would be ultra vires theprovincial power. The Parliament of Canada has jurisdiction over theregulation of free speech under its criminal law power. Parliament hasexercised its power to prohibit the advocacy of genocide, disseminationof hate literature and public defamations of groups in the CriminalCode.216 The Court cited Mr. Justice Walter Tarnopolsky's text217 asauthority. The Court went on to follow the Manitoba Court of Appeal'sdecision in the Warren case that the words "notice", "sign", "symbol"and "emblem" are to be given a narrow and literal interpretation. Theejudsem generis principle applied to the words "or other representa-tion".

In the period under survey there were three noteworthy casesunder federal legislation. The first case 218 involved James Keegstra, ahigh school principal in Eckville, Alberta, who was charged withunlawfully promoting hatred against Jewish people by communicatingstatements while teaching students at Eckville High School. Keegstrawas charged under subsection 281.2(2) of the Criminal Code. Themajor legal issue at trial was whether subsection 281.2(2) infringedthe guarantee of freedom of expression in paragraph 2(b) of theCanadian Charter of Rights and Freedoms.219

Mr. Justice Quigley of the Alberta Court of Queen's Bench notedthat section 27 of the Charter stipulates that the Charter ought to beinterpreted "in a manner consistent with the preservation and enhance-ment of the multi-cultural heritage of Canadians".220 He considered

213 Saskatchewan Human Rights Comm'n v. Engineering Soc'y, Univ. of Sask.(1984), 5 C.H.R.R. D/2074 (Bd. of Inquiry).

214 Hoffer v. Saskatchewan Human Rights Comm'n (1986), 7 C.H.R.R. D/3443, Milliken J.

215 Ibid. at D/3447.216 R.S.C. 1970, c. C-34.217 Supra, note 209.218 R. v. Keegstra (1984), 19 C.C.C. (3d) 254 (Alta. Q.B.) [hereinafter

Keegstra].219 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,

1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafterCharter].

220 Supra, note 218 at 268.

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also that subsection 15(1) of the Charter affirmed that each individualhas dignity and worth. Mr. Justice Quigley was of the view that thephrase "freedom of expression" in the Charter should be interpretedas it was in paragraph l(d) of the Bill of Rights.221 He stated that:

the wilful promotion of hatred under circumstances which fall within s.281.2(2) of the Criminal Code of Canada clearly contradicts the principleswhich recognize the dignity and worth of the members of identifiablegroups, singly and collectively; it contradicts the recognition of moraland spiritual values which impels us to assert and protect the dignity ofeach member of society; and it negates or limits the rights and freedomsof such target groups, and in particular denies them the right to the equalprotection and benefit of the law without discrimination.

Under these circumstances, it is my opinion that s. 281.2(2) of theCode cannot rationally be considered to be an infringement which limits"freedom of expression", but on the contrary it is a safeguard whichpromotes it.222

Mr. Justice Quigley concluded that subsection 281.2(2) of theCriminal Code did not even prima facie infringe Mr. Keegstra's rightof freedom of expression. In effect, he found that hate propagandawas not "expression". Understood in this way, subsection 2(b) of theCharter would protect only expression which was otherwise consideredlegitimate. In case his reasoning was incorrect, Mr. Justice Quigleywent on to decide that subsection 281.2(2) of the Criminal Code wasdemonstrably justified in a free and democratic society. He said:

One has only to look at the major conflicts throughout history and themajor racial uprisings and riots that have occurred. In my view, it isbeyond doubt that breeding hate is detrimental to society for psychologicaland social reasons and that it can easily create hostility and agression[sic] which leads to violence. Hatred is the antithesis of love. While thelatter promotes goodwill and unity the former is divisive and calculatedto injure and ultimately destroy those against whom it is directed. Theinherent danger of an aggressive response by target groups is self-evidentwith history supplying us with many illustrations. Avoidance of the issueor acceptance of the prejudice can have cruel economic, social andpsychological consequences. Such degradation and demoralization shouldnot have to be accepted by any minority group in Canadian society. Inmy view, such kind of expression must be modified and any bias infavour of maximum rhetoric must give way in view of the serious injuryto the community itself and to individual members of identifiable groupsinnocently caught by such prejudice.223

In the second case, R. v. Zundel,224 the accused had been chargedwith publishing false news to the effect that the Holocaust never

221 Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1970, App.1Il.

222 Supra, note 218 at 268.223 Ibid. at 273.224 (1987), 58 O.R. (2d) 129, 18 O.A.C. 161 (C.A.) [hereinafter Zundel].

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occurred. Again, the major legal issue before the court was theconstitutional validity of section 177 of the Criminal Code in light ofparagraph 2(b) of the Charter.

The judgment of the five-member panel of the Court of Appealnoted that in Canada, freedom of expression has never been an absolutefreedom giving an unrestricted right of speech or expression. TheCourt said:

When determining the limits of freedom of expression, a distinction mustbe drawn at the outset between "rights" and "freedoms". A "right" isdefined positively as what one can do. A "freedom", on the other hand,is defined by determining first the area which is regulated. The freedomis then what exists in the unregulated area - a sphere of activity withinwhich all acts are permissible. It is a residual area in which all acts arefree of specific legal regulation and the individual is free to choose. Theregulated area will include restrictions for purposes of decency and publicorder, and specifically with respect to freedom of expression, prohibitionsconcerning criminal libel and sedition. It is what Rand J. described inSaumur v. City of Quebec ...as "the residue inside the periphery".225

In applying this reasoning to section 177 of the Code the Court said:

The nub of the offence in s. 177 is the wilful publication of assertionsof a fact or facts which are false to the knowledge of the person whopublishes them, and which cause or are likely to cause injury or mischiefto a public interest. It is difficult to see how such conduct would fallwithin any of the previously expressed rationales for guaranteeing free-dom of expression. Spreading falsehoods knowingly is the antithesis ofseeking truth through the free exchange of ideas. It would appear to haveno social or moral value which would merit constitutional protection. Norwould it aid the working of parlimentary democracy or further self-fulfilment. In our opinion, an offence falling within the ambit of s. 177lies within the permissibily regulated area which is not constitutionallyprotected. It does not come within the residue which comprises freedomof expression guaranteed by s. 2(b) of the Charter.226

In effect, the Ontario Court of Appeal decided that spreading falsenews was not "expression" and therefore not within the ambit of theprotection offered by paragraph 2(b) of the Charter.

The Ontario Court of Appeal went on to consider the applicationof section 1 of the Charter, in the event that it was wrong in concludingthere was no prima facie infringement of the accused's freedom ofexpression. The Court described the offence as "the very opposite offree public discussion. Stopping such publication by prosecution wouldseem not only reasonable but important."227

The Court, however, allowed the accused's appeal because theTrial Judge had misdirected the jury. The jury had been directed that

225 Ibid. at 150-51, 18 O.A.C. 161 at 176.226 Ibid. at 155-56, 18 O.A.C. 161 at 180.227 Ibid. at 157, 18 O.A.C. 161 at 181.

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one of the essential issues in the case was whether the Crown hadproved that the accused had no honest belief in the essential truth ofthe pamphlet at the time it was published. The Court of Appeal statedthat the issue for the jury was whether the accused knew the pamphletwas false when he published it. By publishing a false document withno honest belief in its truth, the accused might have been recklesswith respect to its falseness. Recklessness would not, however, con-stitute knowledge of its falseness.

The third federal decision involving incitement to discriminationwas Taylor v. Canadian Human Rights Comm'n.228 In 1979 a HumanRights Tribunal under the Canadian Human Rights Act found that JohnRoss Taylor had engaged in a discriminatory practice under section 13of the Act by repeatedly communicating by telephone matter that waslikely to expose persons to hatred or contempt. Mr. Taylor had madeavailable in Toronto a recorded telephone message that communicatedmuch the same matter that was at issue in the Zundel and Keegstracases. The Tribunal ordered Mr. Taylor to cease and desist from hisactivities. The Tribunal's order was made an order of the Federal Courton August 23, 1979. Mr. Taylor did not cease and desist. On appli-cation of the Canadian Human Rights Commission, the Trial Divisionof the Federal Court, on February 21, 1980, found Taylor to be incontempt and imposed a one-year sentence of imprisonment. Thesentence was suspended and made conditional on Taylor thereafterobeying the Tribunal's order. An application for extension of time toappeal the Tribunal's decision was dismissed by the Federal Court,Appeal Division. Meanwhile, Taylor continued to disobey the Tribun-al's order and on June 11, 1980, the suspension of his sentence wasvacated by the Trial Division of the Federal Court. An order ofcommittal was made on June 24. An appeal from that order wasdismissed by the Federal Court, Appeal Division and leave to appealwas refused by the Supreme Court of Canada on June 22, 1981. Taylorserved his sentence of imprisonment and was released on March 19,1982.

The Canadian Charter of Rights and Freedoms came into forceon April 17, 1982. Thereafter, Mr. Taylor resumed his telephonemessage activities. In May of 1983, the Commission made a freshapplication that Mr. Taylor again be found in contempt of the ceaseand desist order. Mr. Taylor filed a motion calling into question thevalidity of section 13 of the Canadian Human Rights Act in view ofparagraph 2(b) of the Charter. Associate Chief Justice Jerome of theFederal Court, Trial Division dismissed the appellant's application asto the constitutionality of section 13 of the Canadian Human RightsAct229 and the matter was appealed to the Appeal Division.

228 (1987), 78 N.R. 180 (EC.A.D.). leave to appeal granted, 3 December1987 (S.C.C.).

229 Canadian Human Rights Comm'n v. Taylor (1984), 6 C.H.R.R. D/2595(F.C.T.D.).

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Unlike the Alberta Court of Queen's Bench and the Ontario Courtof Appeal, the Federal Court, Appeal Division had no difficulty incoming to the immediate conclusion that section 13 of the Act infringedthe appellant's guaranteed freedom of expression. The Court proceededto the section 1 issue. The matter had proceeded in the Trial Division,prior to the Supreme Court of Canada's decision in R. v. Oakes,230

and no section 1 evidence had been led.However, Mr. Justice Mahoney was of the view that evidence is

not always required to establish that an infringement of a right orfreedom is demonstrably justifiable under section 1 of the Charter. Henoted that in the Oakes decision, the Supreme Court of Canada hadobserved that evidence will generally, but not always, be required. InJones v. R.231 the minority of the Court that embarked on the section1 inquiry did so without evidence. Mr. Justice LaForest said:

I do not think such evidence is required here. A court must be taken tohave a general knowledge of our history and values and to know at leastthe broad design and workings of our society. We are not concerned withparticular facts. 232

With deference to the above, Mr. Justice Mahoney stated:

It seems to me that the concern of any free and democratic societyto avoid the vilification of individuals or groups by reason of their raceand/or religion is self-evident. Canada, specifically, is populated byimmigrants and the descendants of immigrants of numerous races andreligions and an indiginous [sic] population of races different from thevast majority of the immigrant population. Canada recognizes its multi-culturalism not only as a fact but a positive characteristic of its nationalpersona.

It is not, in my opinion, necessary that vilification by reason ofrace and/or religion be rife or have become subject of active and generalinterest to render pressing and substantial the concern to avoid it.233

After making reference to events in Ulster, the Punjab, Sri Lankaand Lebanon, where he pointed out that violence is fueled by racialand/or religious hatred, he continued:

I have no difficulty with the concept that the avoidance of the propagationof hatred on . . . [the grounds of race and religion] is, in itself, properlya pressing and substantial concern over free and democratic society. I amnot tempted to disagree with Parliament's evident decision that it is.234

230 (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes].13 (1986), [1986] 2 S.C.R. 284, 69 N.R. 241.

232 Ibid. at 299, 25 C.R.R. at 74.233 Supra, note 228 at 190.234 Ibid. at 190-9 1.

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He went on to conclude that section 13 was proportional and rationallyconnected to this pressing concern and impaired this freedom as littleas possible. The final outcome remains to be seen as Taylor has beengranted leave to appeal to the Supreme Court of Canada.

VIII. PRACTICE AND PROCEDURE

During the period under survey there were several noteworthydecisions dealing with matters of practice and procedure before com-missions and boards of inquiry. The most interesting, if not perhapsthe most important, was the Ontario Board of Inquiry decision in thecase of Pham v. Beach Indus. Ltd. 235 The decision is important not somuch because it interprets for the first time subsection 40(6) ofOntario's Human Rights Code, 1981236 (which allows a board to awardcosts against the Commission), but for its general observations on therole of the Commission and its relationship to complainants.

The complainant had initially alleged that she suffered discrimi-nation based on disability when she left her employment due to apsychiatric disorder. The complaint was settled, with the respondentagreeing to pay the complainant compensation and to reinstate heremployee status with the same seniority she would have had had shenot left. The Board found as a fact that there had been a general layoffwhich would have included the complainant had she not left therespondent's employ. Six months after the general layoff, and shortlyafter the settlement, all laidoff employees, including the complainant,ceased to be employees and lost their accumulated seniority pursuantto the collective agreement. Subsequently, the respondent began to hirenew employees, many of whom were among those laid off earlier.The further rehiring was not done on the basis of seniority because,of course, the laidoff employees had lost their seniority.

After the complainant was re-engaged, she filed a second com-plaint alleging that the respondents had breached the settlement of theinitial complaint and alleging as well that she was being harassed withwarnings and reprimands by her employer as a reprisal for the filingof the initial complaint.

This complaint was entirely without merit. The Board found thatthe Human Rights Officer who arranged the settlement had either notunderstood the seniority provisions of the collective agreement or hadbeen negligently ignorant of them. There were other aspects of theOfficer's conduct that also troubled the Board. At the hearing thecomplainant testified that she had told the Human Rights Officer who

'2- (1987), 8 C.H.R.R. D/4008.236 S.O. 1981, c. 53.

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drafted the complaint that she had received only one warning from theemployer. The Board found as a fact that

unless the complainant was untruthful both to him and in her evidenceat this hearing, the Commisison's [sic] investigating officer did not receiveany information that could conceivably justify these damaging allegationswhich were inserted into the complaint in words of his choosing. 237

The investigator appointed in respect of the second complaint had beenthe investigator of the first complaint. In fact it was he who hadnegotiated the settlement agreement. The Board observed that this wasquite improper and stated that

what is not acceptable, in my opinion, is the appointment of an officerto investigate a complaint that relates to a matter in which he or she hasbeen closely involved as an active participant. It is not unlikely that, butfor Mr. Richard's improper involvement in the second complaint, thatcomplaint might not have been proceeded with.23S

The Board concluded that the investigating officer suffered from aconflict of interest, and further that he acted improperly by, in effect,undertaking to act on behalf of the complainant while acting for theCommission.239

That human rights officers should perceive their role as acting forthe Commission in the public interest rather than on behalf of thecomplainants is obvious. Yet, in this case it was apparent that theinvestigating officer sought to obtain for the complainant more thanshe was legally entitled to. The Board asked:

Is it the objective of human rights officers to act as the complainant'sadvocate in "the normal procedure of investigation and conciliation"? Isit their purpose to secure for complainants the most advantageous arrange-ment that can be had regardless of the rights and interests of respondents,and of others as well whose interests might be affected? Do human rightsofficers perceive the role of a conciliator as being to pursue the interestsof one party at the expense of the other? Do they really attempt "concil-iation", or have they come to regard complainants as though they wereclients?

[T]here would be something unseemly in the Human Rights Com-mission of this province, through its officers and agents, seeking onbehalf of complainants to obtain more from respondents than justice eitherdemands or would countenance. 240

237 Supra, note 235 at D/4013.23 Ibid. at D/4014.239 Ibid.240 Ibid. at D/4015.

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Subsection 40(6) of the Ontario Code24I allows a board of inquiryto order that the Commission pay costs to the respondent where thecomplaint was trivial, frivolous, vexatious or made in bad faith, orwhere in the particular circumstances undue hardship has been causedto the respondent. In this case, the Board found that the complaintwas made in bad faith because

evidence adduced by counsel for the respondents established that theallegations of harassment and reprisals were false, that the complainantknew that to be the case, and that the Commission's investigating officermust have known that as well, since the complainant did not tell himthat there had been warnings and reprimands other than one innocuous(and merited) warning ... 242

In addition, the Board found that the respondents had suffered unduehardship because, as the Board felt, "hardship suffered through themaking of false allegations in bad faith would appear . . . to beundue". 243 Consequently, the Board ordered that the Commission paythe respondent's costs on a solicitor and client basis.

One other matter worth noting in the decision is the Board'sopinion that section 33 of the Code (which permits the Commissionto decide not to deal with a complaint) applies not only upon the filingof a complaint but throughout the course of the Commission's dealingwith it. The Board said:

It should be noted as well that the Commission does have an obligationto assess complaints when they are made, during the course of investi-gating them, and as a result of that investigation, in order to determinewhether there are grounds for the exercise of discretion under section 33of the Code to "decide not to deal with the complaint".244

While the Pham case dealt with the Commission's manifestlyunsuccessful attempt to enforce a settlement, Re Consumers' Distrib.Co. and Ontario Human Rights Comm'n.245 dealt with the Commis-sion's jurisdiction to refuse to approve a settlement of a complaint.Mr. Persaud had filed a complaint under the Human Rights Code,1981246 against his employer and also proceeded with a grievanceunder the collective agreement. Subsequently, he signed an agreementsettling the complaint and the grievance, and then informed the Com-mission that he had done so under duress.

The Ontario Human Rights Commission refused to approve thesettlement after receiving representations, from intervenors on behalf

241 S.O. 1981, c. 53.242 Supra, note 235 at D/4022.243 Ibid. at D/4024.2- Ibid. at D/4021.245 (1987), 58 O.R. (2d) 697, 8 C.H.R.R. D/3901 (Div. Ct.).246 S.O. 1981, c. 53.

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of the complainant. (Section 42 of the Code provides that a settlementof the complaint must be approved by the Commission.)

The respondent brought an application in Divisional Court tooverturn the Commission's refusal, arguing that the only basis onwhich the Commission could refuse approval was if the agreement hadbeen signed under duress. The Commission, it argued, should haveproceeded to inquire into that issue rather than refusing its approval.

The Ontario Divisional Court decided that the Commission had awide discretion in administering its "broad, complex and subtle stat-utory mandate". 247 Quite apart from the issue of duress, the Commis-sion could decide not to approve the agreement because it failed tomeet the policy ends of the Code. The Commission's duties were"essentially administrative in nature"248 and therefore the Commissionhad a wide discretion to give or withhold its approval.

The Divisional Court did, however, find that the Commission hadbreached its duty to act fairly in not acquainting the respondent withthe facts and arguments put to it by intervenors on behalf of thecomplainant in the absence of any representative of the company.Nevertheless, the Divisional Court did remit the matter to the Com-mission in view of the Commission's wide discretion.

In Assad v. Correctional Serv. of Canada,249 the Federal Court,Appeal Division commented on the procedural standards that apply tothe federal Commission when it receives a conciliator's report. TheCommission had decided not to request the appointment of a tribunalafter receiving the conciliator's report. The Commission's decision wasset aside because neither the text nor the substance of the conciliator'sreport had been disclosed to the complainant. The case is significantbecause, for the first time, a court has imposed procedural requirementson the Commission when it decides a tribunal is not warranted. Thecontext of the procedural requirement seems to be the same as whenthe Commission dismisses a complaint.

In Re Commercial Union Assurance and Ontario Human RightsComm'n.250 the Ontario Human Rights Commission argued that itsdiscretion to reconsider (under section 36 of the Code) a decision thatit had already made was more or less absolute. However, the Courtdetermined that

the authority to reconsider arises when there is an issue as to the integrityof the tribunal's process or where factual circumstances have changedfrom the time of the original hearing or where new facts have arisenwhich were not previously available and are subsequently brought for-ward.251

247 Supra, note 245 at 702, 8 C.H.R.R. D/3901 at D/3903.248 Ibid. at 702, 8 C.H.R.R. D/3901 at D/3904.249 (8 June 1987), A-671-86 (F.C.A.D.) [unreported].250 (1987), 59 O.R. (2d) 481 (Div. Ct.).251 Ibid. at 487.

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There were, however, no new facts before the Commission.

The Divisional Court also adopted the content of the duty to actfairly that was imposed on the federal Commission by the SupremeCourt of Canada in the case of Radulesco v. Canadian Human RightsComm'n.252 The Divisional Court said that "[t]here was a duty toapprise the present applicants of the substance of the material beforethe Commission and to give them opportunity to reply to it before thedecision by way of reconsideration was made".25 3 The Divisional Courtset aside the decision of the Commission but did not remit it back tothe Commission for a third consideration because of the inordinatedelay in the proceedings before the Commission.

The Saskatchewan Court of Appeal rendered an important decisionin Saskatchewan Human Rights Comm'n. v. Citation Invs. Ltd.254 ABoard of Inquiry had ruled that certain landlords had discriminatedagainst tenants because of their marital status in that the respondentscharged married persons less rent for housing than single personssharing comparable accommodation. Having made this finding, theBoard declined to award any compensation.

The Saskatchewan Human Rights Commission argued that oncea finding of discrimination was made by the Board and it was provedthat damage had been suffered, the Board had no alternative but toaward compensation. The Saskatchewan Court of Appeal said:

We do not agree. While one might expect that the Board, in circumstancessuch as those which exist here, would award compensation, it can, inthe lawful exercise of its discretion, decline to do so.2 55

Another case of great interest is the decision of the OntarioSupreme Court in Re London Life Ins. Co. and Ontario Human RightsComm'n.256 The complainant alleged discrimination based on sex bythe London Life Insurance Company. The merits of the complaintdepended largely on the interpretation of the limitation contained in agroup insurance policy issued by London Life. Rather than await thedetermination of the Commission, London Life applied to the SupremeCourt of Ontario for a declaration that the provision in the grouppolicy did not contravene Ontario's Human Rights Code, 1981. Mr.Justice Steele noted that there were no facts in dispute and the onlymatters in issue were the interpretation of the Code and the EmploymentStandards Act.257 As might be expected, the Commission objected to

252 (1984), [19841 2 S.C.R. 407, 14 D.L.R. (4th) 78.253 Supra, note 250 at 486.-4 (1987), 8 C.H.R.R. D/4166 (Sask. C.A.).25 Ibid. at D/4167.256 (1985), 50 O.R. (2d) 748, 6 C.H.R.R. D/2891 (S.C.) [hereinafter London

Life].257 R.S.O. 1980, c. 137.

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the application being brought before the Supreme Court on the basisthat "the Code is comprehensive and gives the Commission the exclu-sive right to determine all matters relating to the complaint".258

In proceeding to deal with the application, Mr. Justice Steele said:

While the court should pay deference to an administrative tribunalso as not to interfere unduly with its duties, this does not precludeapplications otherwise properly brought to the court. Section 41 of theCode permits an appeal to the Divisional Court from a decision of aboard of inquiry. However, there is nothing in the Code prohibiting thecourt from adjudicating upon the relevant issues of law. . . . It appearsthat the principal function of the Commission, under the Code, is toeducate, conciliate and, where necessary, order compliance with the termsof the Code. Its main function is not to interpret laws of generalapplication, although in exercising its duties it may be called upon to doso from time to time. If access to the court is to be interfered with, theLegislature must clearly say so and, in my opinion, it has not done soin the Code.

I conclude that there is nothing in the Code that precludes thepresent application. In fact, a decision by this court on the law relatingto the undisputed facts interpreting the sections in question should be ofconsiderable assistance to the Commission in exercising its duty under s.32 of the Code. A decision of the court does not interfere with thejurisdiction of the Commission, or in any way preclude that Commissionfrom investigating the complaint. A decision of the court may only helpthe Commission in resolving the dispute. 25 9

An interesting contrast to the London Life decision is anotherdecision of the Ontario Supreme Court: Ghosh v. Domglas Inc. 260 Inthat case, an individual had commenced an action against his employerfor wrongful dismissal. Shortly thereafter he also filed a complaint ofdiscrimination based on the same fact situation.

Mr. Justice McKinlay ordered the wrongful dismissal action stayedpending the determination of the complaint of discrimination by theCommission. He said:

a court would be looking at similar facts to those which would ofnecessity be considered by a board of inquiry under the Code. However,the court would be without power to order reinstatement of the plaintiff,to order alterations to the workplace to make his funciton in his formerposition possible, or to award monetary compensation for mental anguishresulting from a breach of the provisions of the Code.261

The learned Justice described the situation he wished to avoid:

If proceedings before the court and under the Code were to proceed intandem, it is conceivable that different findings of fact might be made

259 Supra, note 256 at 752, 6 C.H.R.R. D/2891 at D/2893.259 Ibid. at 752-53, 6 C.H.R.R. D/2891 at D/2893.260 (1986), 57 O.R. (2d) 710, 15 C.C.E.L. 105 (S.C.).261 Ibid. at 714-15, 15 C.C.E.L. 105 at Ill.

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by the board and the court; that different assessments of damages mightbe made with respect to similar areas of compensation; and also thatawards may be made by both tribunals.262

An interesting wrinkle is illustrated by the case of Schachter v.R. 263 An individual filed a complaint with the Canadian Human RightsCommission alleging discrimination in the provision of statutory ben-efits under the Unemployment Insurance Act, 1971.264 Concurrently,the complainant commenced an action in the Federal Court claiming,among other things, a declaration that he was the victim of a discrim-inatory practice under the Canadian Human Rights Act.265 The Cana-dian Human Rights Commission sought to intervene in the FederalCourt action and was refused leave to do so by Mr. Justice Joyal. Thefact that the complaint was still before the Commission put

the Commission in an awkward situation before this Court. Its investi-gative functions and its discretionary right to refer the issue to a HumanRights Tribunal or to another authority is seemingly in conflict with itsparticipation at this stage of the proceedings before this Court.266

In the course of his reasons Mr. Justice Joyal noted that "[t]hissuggests that superficially at least, discrimination issues under theCharter and under the Canadian Human Rights Act is now a compet-itive business."267

IX. CONCLUSION

This survey will soon be out of date, since this area of the lawcontinues to evolve rapidly. Section 15 of the Charter can only beexpected to heighten the public's sensitivity to equality issues. Aswell, there appears to be an increasing trend towards judicial reviewof Commission and Board decisions. All indications are that it willcontinue to be an active and interesting area of practice.

262 Ibid. at 715, 15 C.C.E.L. 105 at 111.263 (3 July 1987), T-2345-86 (EC.T.D.) [unreported].264 S.C. 1970-71-72, c. 48.265 S.C. 1976-77, c. 33.266 Supra, note 263 at 5.267 Ibid. at 3.

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