New Brunswick Human Rights Commission Celebrates 45th Anniversary this Year
Forty-five Years Ago
On September 15, 2012, the New Brunswick Human Rights Commission will be celebrating its 45th anniversary. It is Canada’s second oldest human rights commission, having been founded in 1967.
New Brunswick adopted the human rights commission model to overcome the ineffectiveness of its original anti-racism laws, the Fair Employment Practices Act of 1956 and the Fair Accommodation Practices Act of 1959. They were enforced by the Department of Labour, which was also responsible for enforcing several employment laws.
Though racial discrimination was commonplace, few discrimination complaints were filed with the Department of Labour under the old laws. This was likely due in part to the fact that few people were aware of this recourse since the Department did not have an educational mandate. The rise of the civil rights movement in the United States in the fifties and sixties spurred Black leaders in Saint John to press the government for more effective legislation.
Dr. Noël A. Kinsella, the current speaker of the Senate of Canada, was asked by the province to study the issue. He recommended replacing the existing laws with a single Human Rights Act administered by a dedicated human rights commission, as in Ontario. Crucially, the commission’s functions included informing people of their rights and responsibilities and promoting the principle of equality.
The Human Rights Act came into force on September 15, 1967, and with it Canada’s first bilingual Human Rights Commission was born. In 2002, September 15 was declared New Brunswick. Human Rights Day in recognition of this anniversary. It is around that day that the annual Human Rights Award and the occasional Pioneer of Human Rights Award are presented.
Human Rights Expansion
The human rights commission model came to be recognized as a major advance in the effectiveness of equality laws in Canada. Over the years, every jurisdiction apart from Nunavut set up its own human rights commission, though the British Columbia commission was later disbanded.
The original N.B. Human Rights Act of 1967 prohibited discrimination based on race, colour, national origin, nationality, ancestry, place of origin, creed and religion in employment, public services and publicity.
Sex discrimination remained legal in employment, except in the case of lower wages for women (banned under a separate law administered by the Dept. of Labour). The N.B. Human Rights Act was only amended to fully protect against sex discrimination in 1973.
That was also the year that New Brunswick became only the second province to abolish mandatory retirement at any age, subject however to a pension plan exception that still stands today.
In 1976, New Brunswick was the first jurisdiction in Canada to prohibit discrimination on the basis of physical disability in all the activities to which the Human Rights Act applies. Mental disability was added to the Act in 1985 to bring it in line with section 15 of the Canadian Charter of Rights and Freedoms, which came into effect that year.
New Brunswick was one of the first jurisdictions to investigate sexual harassment complaints as a form of sex discrimination, which it started to accept in the late seventies, based mostly on the latest American case law. An early Board of Inquiry decision in Doherty v. Lodger’s International Ltd. found that a cocktail lounge had sexually harassed its waitresses by requiring them to wear short sexy costumes that incited male customers to sexually harass the waitresses. Today, sexual harassment is explicitly prohibited in the Human Rights Act, and harassment based on all the other listed grounds is prohibited as a result of case law.
The Commission’s longest running case by far was Attis v. New Brunswick (School District 15), which started with a court decision in 1988 and finally concluded at the Human Rights Committee of the United Nations in 2000. The case established that schools are legally required to maintain a positive school environment for all their students, and are entitled to discipline teachers for conduct and speech – even outside school hours – that prevent the school from meeting this duty. The Attis case was the basis for the British Columbia Court of Appeal decision in the Jubran case in 2005 that decided that school boards may be legally liable under human rights laws for bullying by students based on any of the grounds listed in the law.
Throughout the Commission’s history, most of the discrimination complaints received concerned employment; they represent about three quarters of the Commission’s case load.
However, as in other provinces, the grounds of discrimination have evolved over the years. In the beginning, complaints were mainly based on race and origin, which reflected the limited number of grounds then listed in the Human Rights Act. When sex was added as a ground in 1971, sex discrimination became the most common type of complaint for a while. The grounds of complaint were varied during the eighties. During the nineties, sex discrimination and sexual harassment were the most common complaints. Since 2000, the largest group of complaints has been those alleging discrimination on the basis of physical and mental disability.
The newly formed Commission set up its two-person head office in downtown Fredericton in 1967. It moved successively into three elegant old mansions over the years. Today, it also has offices in Moncton and Saint John.
The Commission now has a total staff of 20, including interns and part-time employees. They are involved in office administration; phone intake; complaint intake, investigation and mediation; legal advice and representation; research and communications; and management. The Commission hired its first lawyer in 1979; today, over a third of its staff has a Law degree.
One should not underestimate the impact of technology on the operations of human rights commissions over the years.
When the Commission first began in 1967, everything had to be drafted in longhand, and then the original and its carbon copies had to be typed and then endlessly retyped, cut and pasted or retouched with every edit and update. Photocopiers and, later, word processors and computers led to an increase in the quality and quantity of documentation considered by the Commission.
Photocopiers started slowly replacing smelly Gestetner style duplicating machine during the seventies. Until then, stencils were typed and then run through the machine to produce fuzzy purple copies. Typed carbon copies were also used.
The Commission first started to use a noisy stand-alone word processor at its head office during the eighties. Computer terminals and then personal computers were introduced in the late eighties.
In the eighties, the Commission got its first cell phone, which was shared by its staff. It was large enough to have its own bag to carry it in. The first fax machine in 1993 and the introduction of email around 1995 dramatically speeded communications, finally replacing telegrams and somewhat displacing postal mail. With cuts in long distance costs, the Commission adopted a province-wide toll-free phone line in 2003.
It appears that in 1995 the New Brunswick Human Rights Commission became the first human rights commission worldwide to set up a website. It dramatically increased public access to up-to-date information about human rights, while permitting the Commission to keep its printing budget under control.
In 1998, the Commission started to implement its Human Rights Tracking System. This customized software allows the Commission to compile statistics and to monitor the progress of each case, and thus identify and reduce bottlenecks. An updated version was rolled out in 2003.
The Human Rights Act today
The N.B. Human Rights Act currently applies to public services, accommodations and facilities; the leasing of premises; the sale of property; labour unions and professional, business or trade associations; notices and signs; and all aspects of employment.
Not all discrimination or harassment is illegal. The N.B. Human Rights Act currently protects against discrimination and harassment based on 14 personal characteristics: age, marital status, religion, physical or mental disability, race, colour, ancestry (including mother tongue, accent, etc.), place of origin, national origin, social condition (i.e. source of income, occupation & level of education), political belief or activity, sexual orientation and sex, including pregnancy (& intersex & gender identity via case law).
Sexual harassment is explicitly prohibited in the Act, and harassment based on all the other listed grounds is prohibited as a result of case law.
The Commission has a policy of continuous improvement, and is always open to adopting best practices or changes that improve the service it offers to all parties to a complaint.
Mediation has been one of the keys to reducing complaint processing times. Mediation services include face-to-face mediation sessions and settlement discussions by letter, email and telephone.
The Commission is increasingly relying on pre-complaint interventions, that is, the resolution of disputes through mediation before a complaint is filed. The Commission is also continuing its early mediation program, that is, mediation within six months of the filing of a complaint.
The Commission currently publishes nine interpretative guidelines, as well as three procedural guidelines. They are available on the Commission’s website. The Commission is updating its current guidelines as well as developing new ones. A pamphlet dealing with lesbian, gay, bisexual, transgender and intersex students is also being developed.