3.2 The Legal Framework

The Canadian Charter of Rights and Freedoms

The Constitution Act of 1982 is the highest law of Canada and is a landmark document in Canadian history. It achieved full independence for Canada by allowing the country to change its Constitution without approval from Britain. The Constitution serves as the supreme law of Canada. It also enshrined the Charter of Rights and Freedoms, which guarantees fundamental rights to every person, including rights of freedom of speech, press, assembly, association, and religion.

The principal rights and freedoms covered by the Charter include:

• freedom of expression;
• the right to a democratic government;
• the right to live and seek work anywhere in Canada;
• the legal rights of people accused of crimes;
• the rights of Indigenous peoples;
• the right to equality, including gender equality;
• the right to use Canada’s official languages; and
• the right of French or English minorities to an education in their language.

Section 15 of the Constitution is often cited in employment law. It states that every individual in Canada—regardless of race, religion, national or ethnic origin, colour, sex, age, or physical or mental disability—is to be treated with the same respect, dignity, and consideration.

The Charter’s Section 15 anti-discrimination clause led to a series of rulings that also changed the legal landscape for gays and lesbians. For example, the Supreme Court’s 1998 Vriend decision banned discrimination based on sexual orientation (Foot, Yarhi, & McIntosh, 2018).

The Canadian Human Rights Act (CHRA)

The CHRA became effective in March 1978. Let’s examine some of the statements in this Act to understand its significance for HRM.

It proclaims that “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have.” this means that, considering their desires and abilities, the opportunity to earn a living, which implies the ‘opportunity to work,’ should be equal for all.

The CHRA is very specific as to those categories deemed discriminatory. Section 8 of the Act refers to “a prohibited ground of discrimination.” Under this Act, the following are grounds on which discrimination is prohibited:

• Race
• National or ethnic origin
• Colour
• Religion
• Age
• Sex
• Sexual orientation
• Gender identity or expression
• Marital status
• Family status
• Genetic characteristics
• Disability
• Pardoned conviction

These categories have changed over time, following changes in our society. Note that prohibited grounds of discrimination vary somewhat among federal, provincial and territorial jurisdictions.

Enforcement of Canadian Human Rights Laws

The CHRA only applies to federal government departments and agencies, Crown corporations, and businesses under federal jurisdictions such as banks, airlines, railways, the CBC and other communication companies and Canada Post. Employees of organizations that fall under the Canadian Human Rights Laws and feel discriminated against can file complaints directly with the Canadian Human Rights Commission. A systematic process is in place to handle these complaints. A mediation process is followed after a complaint is filed to resolve the issue between the parties. If the mediation fails, the dossier is handed over to the Human Rights Commissioner, who can decide to:

• dismiss the complaint;
• send the complaint to conciliation;
• defer the decision and request more information and further analysis, or
• refer the complaint to the Canadian Human Rights Tribunal.

“HRM and The Law” from Human Resources Management – Canadian Edition by Stéphane Brutus and Nora Baronian is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.—Used section The Canadian Charter of Rights and Freedoms, added additional information; Used section The Canadian Human Rights Act (CHRA), edited, added further examples.