Calls to Action

II. Elaboration on Section 5 complaint and other matters

Why a human rights complaint against Industry Canada?

Industry Canada is the Federal Government Department responsible for the administration of the CRC program. CRC is not a stand-alone entity and therefore can not be the respondent in a human rights complaint. Industry Canada is federally-regulated and therefore is subject to the Canadian Human Rights Act, not provincial (human rights) legislation.

While filing a human rights complaint against a university (or several universities) that have received CRC's might seem another logical route, universities are not subject to the Canadian Human Rights Act because they are provincially regulated employers and service providers. Consequently, while one could file a human rights complaint against a university(ies), one would have to file under the applicable provincial legislation. The complaint against the university would then be one complaining about the procedures the university adopted for its own purposes in recruiting and distributing Chairs. However, the fact that the initial control of that process is in the hands of Industry Canada (CRC program), any remedy against one single university would not have a universal affect on the whole of the CRC program or other universities. At best, a remedy against one university would lead to a change in that universitys procedures in nomination/distribution of Chairs. Because each province has its own human rights legislation, many different complaints under 10 different regimes would have to be filed in order to obtain a remedy for each possible university distributing CRC's. This could lead to very inconsistent results. Moreover, it would never be able to effect a change in the ultimate structure of the CRC program.

Why are universities not subject to the federal legislation when the receive money from the federal government and when we are all "Canadians"?

The law on constitutional authority/jurisdiction is quite extensive. Suffice it to say that in Canada, because we have a division of powers between the federal government and the provinces, matters of a provincial nature (which include education as well as employment in a province) are subject to provincial powers. While the federal government does give money to provinces and organizations which fall under provincial power, this does not give the federal government the power to legislate in respect of those matters which are purely within provincial power. Therefore, while the government provides money to the provinces with respect to universities, they can not legislate in a manner so as to interfere with the provincial power over post-secondary education.

Why a human rights complaint and not a Charter action or some other action?

1. A Charter action against Industry Canada (not universities) might be feasible, but would require going to the courts. Same for other kinds of legal actions. This would be more costly for the plaintiffs/complainants, and at least as time consuming. One could attempt to obtain Charter Challenge funding, but this would delay the process and there is no guarantee that the funding would be assigned.



2. A human rights complaint does not require the complainant to hire a lawyer or go to court (usually). The complainant merely files a complaint with the Commission, which, if it accepts the complaint, has a duty to investigate and attempt to resolve the complaint (mediation, conciliation, or litigation at a Tribunal) if they determine that there has been discrimination. If the matter does not "settle" through either mediation or conciliation, and if the Commission refers the complaint to a Tribunal, the complainant can hire a lawyer to represent her, but the Commission will usually represent the interests of the complainant indirectly through the Commission's obligation to represent the public interest (very often the public interest and the private interest are the same, especially in a policy complaint like the one before you).

Why s. 5 of the Canadian Human Rights Act? Why not section 10 or 8?

The Canadian Human Rights Act (s. 5) prohibits discrimination in the provision of a service to the public (Industry Canada is providing the CRC as a service to the public, i.e. universities and faculty). Discrimination on the basis of sex is one of the prohibited grounds of discrimination under that Act (along with sexual orientation, race, age, disability and several other grounds identified in s. 3 of the Act).

There is no other provision in this legislation that would apply in the circumstances of this case. Sections 7, 8, and 10 all apply to employers under federal jurisdiction. As stated above, due to the federal nature of our constitution, employers situated in a province, subject to provincial jurisdiction (Education is a provincial matter under s. 92 of the Constitution Act), are not subject to the Canadian Human Rights Act.

What remedies are we seeking?

Section 52 of the Act sets out the framework for remedial orders under the Act. The goal of the complaint would be to ensure equal access to Chair appointments for male and female faculty.

Equality may not mean equal representation, nor proportional representation. Restricting remedies to a numerical outcome might undermine the goal of ensuring the elimination of systemic barriers in access to opportunities such as provided by the CRC program.