Human Rights Complaint concerning the Canada Research Chairs Program
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
- 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.
- 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
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.
Your thoughts and suggestions are welcome. You may respond privately to
Wendy Robbins at email@example.com, or publicly on PAR-L by emailing PAR-L@unb.ca.