The New Brunswick Human Rights Act Explained
What is the New Brunswick Human Rights Act?
The Human Rights Act of New Brunswick, which is often called the Human Rights Code, is a provincial law that prohibits discrimination and harassment based on 14 personal characteristics in specified activities that fall under provincial jurisdiction. It is the principal legal instrument through which equality rights are enforced in New Brunswick, Canada.
The Act applies to public accommodations, services and facilities (e.g. motels, schools, restaurants, stores, washrooms, insurance); the leasing of premises (e.g. apartments); the sale of property; labour unions and professional, business or trade associations; notices and signs; and all aspects of employment.
The New Brunswick Human Rights Act applies to private sector businesses and organizations as well as to the provincial and municipal governments. Employers are responsible for the acts of their employees if such acts were committed in the course of employment, that is, if they were in some way related or associated with employment. Schools are usually liable for bullying between students based on any of the 14 listed personal characteristics.
However, the Human Rights Act does not apply to federally regulated activities. Some examples are broadcasting, telecommunications, banking, railways, shipping, aeronautics, extra-provincial transportation, uranium, grains, First Nations governments and the federal government. Federally regulated activities are subject to the Canadian Human Rights Act, which is enforced by the Canadian Human Rights Commission.
The courts have stated that it is not possible to avoid human rights laws through contracts or collective agreements, and that human rights laws prevail over any other law that conflicts with them unless it expressly says otherwise.
Like all laws, the Human Rights Act is subject to the Canadian Charter of Rights and Freedoms, which has been part of Canada's Constitution since 1982. Like the Act, the Charter protects equality rights. However, the Charter also guarantees certain fundamental freedoms, democratic rights, mobility rights, legal rights, aboriginal rights and linguistic rights. Furthermore, the Charter is enforced by the courts, not by any government agency. And, unlike the Human Rights Act, the Charter only applies to governments and their agents; private sector businesses and organisations are not subject to the Charter. The Commission interprets and applies the Human Rights Act in a manner consistent with the Charter of Rights.
No regulations have been issued pursuant to the Human Rights Act. However, the Human Rights Commission has adopted various guidelines.
What protections does the Human Rights Act provide?
Not all discrimination or harassment is illegal. The Human Rights Act of New Brunswick currently protects against discrimination (and implicitly harassment) based on 14 grounds: age, marital status, religion, physical disability, mental disability, race, colour, ancestry, place of origin, national origin, social condition, political belief or activity, sexual orientation and sex, including pregnancy (and gender identity).
The Act expressly prohibits only sexual harassment, but harassment (including bullying) on all 14 characteristics is implicitly prohibited since the courts have recognized that harassment is a form of discrimination.
Discrimination can be defined in everyday terms as a practice or standard that is not reasonably necessary, that has the effect, intended or not, of putting certain persons or groups at a disadvantage because of shared personal characteristics such as race, sex or religion, and that is based on stereotypes about them or perpetuates the view that they are less capable or less worthy of recognition or value.
Canadian courts have recognised that discrimination may be direct, involving an intentional difference in treatment, usually motivated by bigotry, prejudice or stereotypes. However, it may also be unintentional, as in the case of "systemic" or "adverse effects" discrimination that occurs when a uniform practice has a disproportionately adverse effect on a disadvantaged group and the needs of the group are not reasonably accommodated.
Accordingly, employers, service providers and others who are required not to discriminate must go beyond treating everyone the same. They must, in addition, accommodate as much as reasonably possible the 14 protected characteristics of those to whom such uniform treatment would have a discriminatory effect. This means that they must avoid standards that have a discriminatory effect where this can be done without sacrificing their own legitimate objectives or incurring undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost.
Exceptions and limits
The Human Rights Act includes a number of exceptions. For example, according to subsection 6(3), minors may be denied a service if this is due to an age of majority specified in a law. Also, section 14 provides that preferences or restrictions made pursuant to an affirmative action programme aimed at remedying a traditional situation of disadvantage are not discriminatory.
The Human Rights Act also has several exceptions concerning "bona fide qualifications" and "bona fide occupational qualifications." Supreme Court of Canada decisions have established a three-part test to determine whether these exceptions apply. According to this test, a discriminatory standard adopted by an employer, landlord, owner or service provider is justified only when:
- the standard was adopted for a purpose or goal that is rationally connected to the function being performed,
- it was adopted in good faith and in the belief that it is necessary to fulfill that purpose or goal, and
- it is in fact be reasonably necessary to accomplish that purpose or goal, in the sense that the employer, landlord, owner or service provider cannot accommodate affected individuals without incurring undue hardship.
The Human Rights Act is administered by the New Brunswick Human Rights Commission, which has an arm's length relationship with the Minister of Post-Secondary Education, Training, and Labour. The Commission investigates and conciliates formal complaints of discrimination filed under the Act and advances equality of opportunity through public education programmes and community development activities.
A person claiming to be aggrieved by discrimination contrary to the Human Rights Act may file a complaint on a special form available from the Commission. There is no cost associated with the complaint process, and it is illegal to retaliate against a person for filing a complaint. However, a complaint must be filed within one year after the alleged violation of the Human Rights Act, unless the Commission grants a time extension.
In some cases, the Commissionís staff offers mediation services to negotiate a settlement of a dispute prior to the filing of a formal human rights complaint; this is called pre-complaint intervention. If a complaint is filed, the Commission has an early mediation service in which a staff person acting as a neutral third party assists the parties to resolve the complaint as early as possible.
If early mediation is unsuccessful or is refused by the parties, a Human Rights Officer may investigate the complaint. There are opportunities for the parties to settle the complaint throughout the investigation.
Depending on the information gathered, the Officer may recommend that the file be closed by the Director under section 22 of the Human Rights Act as being clearly without merit. In that case, the parties receive a letter and a summary dismissal report indicating why the file was closed, and advising them that they can appeal the dismissal to the Commission within 15 calendar days. Please note that the time limit for appeals cannot be extended. If an appeal is filed, the members review the Directorís decision during a Commission meeting and either uphold it or direct that the file be re-opened for further action.
Unless the case was closed by the Director under section 22, the Officer prepares a Case Analysis Report (CAR). It contains an analysis of the information gathered through the investigation and a recommendation from the staff to the Commission members (to dismiss the complaint, for example). The report is shared with the parties and they can respond to it in writing.
The case analysis report and the partiesí responses are considered by the Commission members at a meeting. The Commission members may dismiss the complaint as being without merit. On the other hand, if they are satisfied that an inquiry
is warranted under the circumstances, and the Commission is unable to settle the complaint, the Commission members will refer the complaint to the Labour and Employment Board (popularily known as the "Labour Board"), which is a permanent tribunal that deals mainly with a variety of employment disputes.
The Labour and Employment Board holds a pre-hearing conference to deal with preliminary issues and to mediate the dispute if possible. If a settlement cannot be negotiated, the Board will hold a public hearing at a later time to hear the evidence and argument of all the parties to the complaint. The Commission is a party and has carriage of the complaint.
If the Board finds that the Human Rights Act was not violated, it dismisses the complaint. If it concludes that there was a violation, it may order, for example, that the discrimination stop, that a dismissed employee be reinstated with back pay, that an apartment be offered to a person who had been denied an apartment or that the victim be compensated financially for expenses and emotional suffering. The decisions of the Labour and Employment Board (and of Boards of Inquiry appointed under the Human Rights Act before it was amended in June 2012) are published unless the Board orders otherwise.
It is the Labour and Employment Board, not the Commission, that holds a hearing and issues an order. It is separate and independent from the Commission.
The Commission's educational mandate
Under the Human Rights Act, it is also the function of the Human Rights Commission to forward the principle that every person is free and equal in dignity and rights.
The preamble to the Act reminds New Brunswickers that ignorance, forgetfulness, or contempt of the rights of others are often the cause of public miseries and social disadvantage and that people and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law. Consequently, the Commission expends significant resources in the area of human rights education.
The Commission also reports through government to international bodies responsible for the implementation of human rights treaties on its own efforts in the elimination of discrimination.