Bill S-5 to amend the Canadian Human Rights Act

On October 9, 1997, Bill S-5, which amends three pieces of legislation including the Canadian Human Rights Act, was tabled in the Senate. On May 12, 1998, the Bill received Royal Assent. Some of the amendments in the Bill deal with aspects of the Act criticized by Madam Justice McGillis in her decision (see “Two rulings by Federal Court shut down Bell Canada pay equity case” on our Publications page) quashing the Bell Canada pay equity hearing.

In this connection, the Bill would scrap the current ad hoc panel of part-time Tribunal members, and replace it with a smaller, permanent expert body called the Canadian Human Rights Tribunal. Appointments would be lengthened to as long as seven years for the Chair and Vice-Chair of the Tribunal, and to as long as five years for members. The Chair would be able to extend the appointment of a member whose term expires before the conclusion of a hearing the member has already begun. Remuneration would be set by Cabinet, not the Commission. However, the Commission’s power to issue guidelines binding on the Tribunal would be retained.

One major change involves the incorporation of the duty to accommodate into the employer’s bona fide occupational requirement (BFOR) defence. Under the amendments, respondents to human rights complaints would not be able to use the BFOR defence unless they demonstrate that they could not have accommodated the complainant short of undue hardship. The factors for assessing undue hardship are limited to health, safety and cost, and the Governor in Council is given the power to prescribe standards for assessing undue hardship. These changes will bring the federal human rights system into line with that of the Ontario Human Rights Code, and will eliminate the difficult and often artificial distinction between direct and adverse effect discrimination that plagues human rights litigation under the federal statute. (For more recent developments, see “Two federal labour bills now in force” on our What’s New page; see also “The accommodation of disabled employees – a guide to the legal landscape”, “The duty to accommodate in action”, and “Accommodating disability short of undue hardship” on our Publications page.)

For further information, please contact Carole Piette at (613) 563-7660, Extension 227.

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