Part one, sources of equality rights in Canadian law. So yeah, so this is our second week looking at equality rights, and it occurred to me that a good place to start might actually be by considering the two sources of equality rights in Canadian law, because last week we spent quite a while looking at the Charter of Rights and Freedoms. where it came from, why it's written the way that it is, and why it has such a robustly and complexly phrased equality rights section, section 15. So I just want to clarify that today we're not actually looking at the Charter, we're looking at a law, a different kind of law that worked in the same kind of way, a different kind of equality rights law in Canada.
And I thought, yeah, it'd be helpful to start off by flagging the two sources where you can find equality rights in Canadian law. and also outlining how they relate to each other. So I'll start with the one which should be familiar by now, the one that we started looking at last week.
And those are things like the Bill of Rights and the Charter. So I've got written on screen there, there are two types of equality rights in Canada. Let me actually read out what's on the screen there. Firstly, those which apply to government, e.g. the Bill of Rights and the Charter of Rights and Freedoms. This prohibits discriminatory laws.
So like I said in the previous lesson, the Bill of Rights still exists. It's still in the books, but nobody uses it anymore for various different reasons. First of all, because of all the problems that came up with it, and we looked at how It developed more and more problems the longer it went on leading up to the Bliss case.
But second of all, because we've got the Charter of Rights and Freedoms now, people tend not to use the Bill of Rights anymore. And there are two advantages to the charter. One is just that, you know, as I tried to indicate last week, it was written with the express intent in mind not to repeat the problems of the Bill of Rights. So part of the point of the charter was that it wasn't going to have the same problems that the Bill of Rights. had.
But then also the charter is just a much more powerful piece of legislation, like insofar as it's part of the constitution of Canada. So folks tend to go right for the charter if they want to go for a kind of law that actually applies to the, a kind of equality rights law that actually applies to the government. When would a person use the equality rights section of the Charter of Rights and Freedoms? well, I highlighted there on screen, this prohibits discriminatory laws. We're going to use it in instances where the law itself appears to be discriminatory.
So in the Andrews case that we looked at last week, at the end of last week's lesson, in the Andrews case, it was a government law that Mark David Andrews took to be discriminatory. So I'll just say like, e.g., you know, Mark... Mark David Andrews applied the Charter against the law that concerned who could be a lawyer. So when are you going to use the Charter? You're going to use something like the Charter if the equality rights, so applied the already equality rights section of the Charter, equality rights section.
of the charter because we're looking specifically at equality rights. So yeah, so in last week's lesson, someone like Mark David Andrews, he applied the equality rights section of the charter against the law that concerned who could or could not be a lawyer. You know, in the next lesson, we'll look at a case where some people apply the law, yeah, apply the charter against a law that concerned who could or could not collect a pension.
They are going to argue that it was actually a sex discrimination law that the government ended up putting in place unintentionally. But regardless, this is just to say something like the Charter, what does it exist for? It exists when you want to question a law itself.
So if the alleged violation of equality rights is coming right from the law itself, that's when you would use the Charter. So we don't apply the charter against each other. You know, if someone in your life is being a sexist, like you don't apply the charter against that person. Or more pertinently, the charter doesn't get applied against like private actors.
So your boss, for example, like if your boss is hiring in really sexist ways, you don't apply the charter against your boss. The Charter is primarily something we apply against the government, especially in instances where it's the law itself that you're saying is discriminatory. That's when you might use Section 15 of the Charter. We saw that last week and we'll see that again next week.
What we're going to look at in this week's lesson is something closely related, but I thought it'd be useful to explain it because we're going to encounter this kind of law a few times throughout the semester. Right now we're doing gender equality rights and I promise this one is actually a gender equality rights case. Right now we're doing gender equality rights, but in the next few weeks we'll also look at things like equality rights on the basis of sexual orientation and equality rights as they relate to gender identity.
These are also going to be things that involve both the Charter and another kind of legislation, so I thought it could be helpful to unpack this right now. What is this? There is also a different kind of equality rights law in Canada, those which apply to private actors. and these are known as, I've got written there on the screen, aka human rights legislation.
And what I've got on screen there also is that this is typical anti-discrimination law. It prohibits unjustified discrimination in employment services and housing. So most of us, if we ever have contact with equality rights, what we'll be using is not the equality rights section of the charter, probably...
Probably very few of us are ever going to, you know, challenge a law in court or something like that. Very few of us are ever going to sue the government saying that they have a discriminatory law in place. Most of us, if we actually encounter equality rights law, what we're going to encounter is human rights legislation.
Because it deals with, yeah, it deals with things that happen more in the private sphere. Or I should say private actors, not necessarily private sphere, but private actors. So human rights legislation.
So I've got written down here, it prohibits unjustified discrimination in employment services and housing. What might that look like? Employment, your boss is being sexist.
So like your boss does something which is sexist or puts a workplace policy in place which is sexist or, you know, is adopting hiring practices or promotion practices that are sexist. human rights legislation is what you're going to use. Services, that business, that business is being sexist. So there's like a business which is like not, not seating people, not seating women or whatever, or they're not allowing women to like, you know, use a part of their facilities or something.
Excuse me, that would be something you use human rights legislation for. So these are private actors we're talking about here. Your boss is a private actor of service, is a private actor.
Housing, you know, that would be like your landlord. Your landlord is being sexist. Your landlord only allows people of a certain gender to rent or something like that.
Or your landlord is charging twice the amount of rent for someone on the basis of their sex or something like that. That's the kinds of things you would apply human rights legislation to. So you wouldn't make a claim under the Charter if your boss is being a sexist, or that business is being sexist, or your landlord is being sexist, or whatever.
You would make a claim under human rights legislation. So this is the kind of law we're actually more likely to encounter. Makes less of a major impact, because if you're challenging the law itself, obviously that's going to have huge ramifications for everybody.
But in terms of what we're more likely to actually encounter in our lives, something like human rights legislation is that thing. And perhaps to that point... point, I would just add also, before I kind of explain the relation between them, because there is a relation between them, and there is a reason we learned about the Charter first last week, in terms of the one other thing I would just point out here, it's just that every province has its own human rights legislation. So there's one Charter that applies to all of Canada. Again, it's the big sexy part of the Constitution.
It's the part that makes headlines. It's the one that challenges the law itself, or you can use it to challenge laws itself. And yeah, it gets all the attention for those reasons. But there's also in every province, this human rights legislation stuff. So for example, like here in Ontario, we've got the Ontario Human Rights Code.
I think we'll look at a few cases that actually had to deal with the Human Rights Code, like the Ontario Human Rights Code as we move through the semester. But also it's the one that might impact you. Like insofar as...
Even if you're not in Toronto right now, like you're doing a degree through a university in Toronto, chances have it that if you interact with equality rights law in a real way in your life, it's going to be something to do with the Ontario Human Rights Code. And I also just gave another example here, like the British Columbia Human Rights Code. And I gave that example because it's the law that was applied in the Mayron case that we're going to look at over the course of our lesson today. So they're mostly all the same.
Every province has its own human rights code. I don't know that we'll actually, or a human rights law, they call them slightly different things everywhere. Every province has its own one. They're all a little bit different, like there's tiny changes from here to there.
Not every province has to make them exactly the same, although we will when we get to sexual orientation and the law, look at some of the problems that come up when provinces don't make them the same. But it's just to say that, you know, if you read about the Ontario Human Rights Code, or you read about the British Columbia Human Rights Code, or you, you know, you read about the, I think it's the Saskatchewan Human Rights Act or things like that, they are all pretty much the same thing. It's just every province has its own slight differences between them.
But they're all this human rights legislation thing. While we're here in Ontario, you're more likely, most likely to encounter things like the Ontario Human Rights Code. And yeah, we'll look at a couple things related to that later in the semester. and this case for today, the Mehron case concerning the British Columbia Human Rights Code.
So yeah, if you're wondering, and hopefully you are asking this question mentally, why did I bother telling you about the Charter last week if we're not looking at the Charter this week? Well, we will look at the Charter again, like next week's lesson is a Charter case, but these two things relate to each other. That's to say that human rights legislation and the Charter relate to each other. So those which apply to private actors must conform to those which apply to the government, i.e. human rights legislation is not the same as the charter, but it needs to conform to the charter.
And so, again, I think this is something that we will get to in a few weeks. But what does it mean? So you don't apply the charter against your boss, you don't apply the charter in your life as a private actor, or you don't apply the charter against private actors. But that law that you apply against private actors, that human rights legislation kind of law here, it needs to follow the Charter. So the Charter sets the standard that all other equality rights law has to follow throughout the country.
But if the Charter has determined, okay, this is how we're going to—if the courts have determined under the Charter, this is how we're going to approach equality rights, this is what we mean by equality rights, these are the important things about equality rights, etc., then human rights legislation is likewise going to have to reflect the same thing. So the standard set by the Charter matters a lot. It matters a lot what the court decided in the Andrews case and decided in subsequent Charter equality rights cases. It matters a lot what they decided there because that informed then how human rights legislation was going to be understood and applied. And we'll see that briefly when we consider the Mayeron case in a moment, that in terms of how the Supreme Court decided human rights legislation would need to be applied from that point going forward, they said, we just made all these declarations about the nature of equality under the Charter.
We've got to make sure that when we're applying human rights law, we're doing the same thing. So although you rarely will encounter the Charter in your day-to-day life, the equality rights law that you do encounter is written the way that it is because it needs to follow the standard set. by the charter. So that's what we've got in a case like this. And yeah, I'll just say, I'm just looking at my notes also, that although it was the Andrews case of 1989, where the Supreme Court gave us that really robust definition of equality under the charter, and we considered that last week, it wasn't until the Mayrin case of 1999. that that clarification was made about how, okay, if we've got this definition of equality in the charter now, how are we going to apply human rights law?
Well, that finally got clarified in 1999, 10 years later. They thought, okay, we will take this equality rights thing from the charter, and we'll make sure it's clearer in human rights law. And we'll do that in the Mehran case that you will learn about today.
So let me down below start telling you a little bit about the Mehran case, where it came from, and why it made its way all the way to the Supreme Court. as the case that would establish how human rights legislation would be applied from that point forward.