canada discrimination is-x-legal
Is it illegal if a policy affects one protected class more than everyone else?
<p>I heard some residential leases prohibit any open flames including candles. Since many religions use candles, wouldn't this be an illegal form of discrimination of a protected class? Or does that not apply because the rule is applied to everyone equally.</p>
<p>IIRC they came out with a gaming console that had a video camera to monitor the user's movement. It didn't register well for people with dark skin (e.g. black). Would this be a form of discrimination or not because it's the same tool being used by everybody?</p>
<p>In general does something that applies to everyone but negatively affects a protected class more count as illegal discrimination? Does intent matter?  Which acts apply? To my understanding the Human Rights Act always apply, then more specialized acts (such as the Residential Tenancy Act, Labour law) apply depending on the context.</p>

<p>Here I assume from your cases that you are interested in the regulation of private activities (with human rights code etc.) instead of constitutional restraints on the government (under the <em>Charter</em>). The constitution only prohibits discrimination in law (or government policies) based on enumerated or analogous grounds.</p>
<blockquote>
<p>Which acts apply? To my understanding the Human Rights Act always apply, then more specialized acts (such as the Residential Tenancy Act, Labour law) apply depending on the context.</p>
</blockquote>
<p>Canada is a federal country with 10 provinces and three territories each having the powers to legislate under the constitution (for the provinces) or under federal devolution acts (for the territories). They all have different laws. And in constrast to the United States which is often thought to be less &quot;centralized&quot;, in the domain of properties and civil rights (including human rights, employment and housing etc.), the federal government in Canada cannot legislate over these areas generally but it can regulate these things in domains where otherwise belong to the federal jurisdiction (e.g. airlines, interprovincial railways, banks but not credit unions, telecoms, the postal service, the armed forces). Federal laws regulating human rights and employment like the Canadian Human Rights Code and Canada Labour Code apply <strong>only</strong> to those under federal jurisdiction. In most situations, provincial laws apply and are different for each province, including the list of protected characteristics (e.g. citizenship or suspended criminal records are not protected, at least not directly, in all provinces). So you will have to look at the law in your province of interest. Generally the human rights Code or Act should be comprehensive, but exceptions may arise in other special laws (e.g. union memberships are often protected in the Labour Code; disability accommodations may have separate laws).</p>
<blockquote>
<p>In general does something .... count as illegal discrimination?</p>
</blockquote>
<p>Another point is that discrimination is not generally illegal; you are free to buy Pepsi instead of Coca Cola. Discrimination based on protected characteristics is not necessarily illegal; a gay man can choose to have a man instead of a woman for his partner. In Canada, both federally and in each province, what is <em>generally</em> illegal is when individuals are adversely differentiated due to a protected characteristic in the course of providing a good, service, facility or accommodation available to the general public, or in relation to housing and employment.</p>
<p>Even then, discrimination based on protected characteristics can be legal if certain requirements are met. These usually include employment or service requirements in good faith, programs designed to improve the circumstances of socially disadvantaged individuals and groups (&quot;affirmative action&quot;), and &quot;traditional&quot; exceptions (e.g. age-based discounts). Religious organizations can also discriminate based on their sincerely held religious beliefs, at least when they are not carrying out commercial provision of goods and services available to the general public.</p>
<p>For example, it is not against the law for an employer to provide gender-separated bathrooms (it may even be a requirement). In many if not all provinces, it is not illegal for businesses to give child or seniors discounts. In some provinces, a landlord who will be living on the same premises with shared bathrooms and kitchens is not subject to human rights laws or have reduced burden to accommodate. Insurance companies also often have greater leeway in their business decisions, since their business model is usually and inherently built on discrimination (of risks which can correlate with protected characteristics). There are also social expectations and conditions that &quot;rank&quot; a hierarchy of grounds and circumstances (justifiably or not) which may lead to more or less scrutiny over different grounds of protection and areas of service (e.g. an insurance policy discriminating on race is socially absolutely not acceptable where discrimination due to age in insurances are acceptable and discrimination due to gender is controversial; addiction-based disability claims may also attract more scrutiny; employment and housing are considered much more important and in detail compared to retail discounts). Public policy overwhelmingly favours or at least more carefully consider claims from the traditionally socially disadvantaged groups.</p>
<blockquote>
<p>that applies to everyone but negatively affects a protected class more</p>
</blockquote>
<p>In Canada, the discrimination you are thinking of are often referred to as &quot;adverse effect discrimination&quot;, sometimes also called &quot;indirect&quot; discriminations, where a practice neutral on its face adversely impact individuals based on a protected characteristics. It is not necessarily separately or explicitly spelled out, but results from the purpose of human rights legislations.</p>
<blockquote>
<p>The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. <strong>It is the result or the effect of the action complained of which is significant.</strong> If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.</p>
<p><em><a href="https://www.canlii.org/en/ca/scc/doc/1985/1985canlii18/1985canlii18.html" rel="nofollow noreferrer">Ont. Human Rights Comm. v. Simpsons-Sears</a></em>, 1985 CanLII 18 (SCC), [1985] 2 SCR 536</p>
</blockquote>
<p>But not all policies that cause disproportionate impacts are necessarily illegal. Insurance rates based on postal codes may discriminate against areas where a racial, ethnic, religious, age etc. group concentrates. But it can be justifiable as a reasonable good faith business requirements if the discrimination is based on an objective, reasonable criteria (e.g. flood risks or claim rates).</p>
<p>The extent that a protected characteristic is relevant to the impacts must be considered. An arbitrary, artificial, stereotypical policy are more likely to be illegal than a considered, reasoned, well-founded one.</p>
<blockquote>
<p>Does intent matter?</p>
</blockquote>
<p>A discriminatory practice is &quot;objective&quot; and a good or neutral intent does not prevent a practice from being illegal discrimination. However, evidences of intent of discrimination are often illegal discrimination in itself and in any case, they can be used as evidences to prove discrimination cases and undermine the on-the-face neutrality of an action in question. Malicious intent or lack of can also be relevant in determining appropriate damages awarded to the complainant.</p>
<p>Newfoundland and Labrador for example makes this explicit in their human rights law:</p>
<blockquote>
<ol start="10">
<li>Discrimination in contravention of this Act does not require an intention to discriminate.</li>
</ol>
<p><em><a href="https://assembly.nl.ca/legislation/sr/statutes/h13-1.htm" rel="nofollow noreferrer">Human Rights Act, 2010, SNL 2010, c H-13.1</a></em></p>
</blockquote>
<p>But the reasoning has been established by the Supreme Court going back at least to 1985 and apply to the interpretation of all human rights codes in Canada (unless an intent is specifically required):</p>
<blockquote>
<p>The intent to discriminate is not a governing factor in construing human rights legislation aimed at eliminating discrimination. Rather, it is the result or effect of the alleged discriminatory action that is significant. The aim of the Ontario Human Rights Code is to remove discrimination ‑‑ its main approach is not to punish the discriminator but to provide relief to the victim of discrimination.</p>
<p><em><a href="https://www.canlii.org/en/ca/scc/doc/1985/1985canlii18/1985canlii18.html" rel="nofollow noreferrer">Ont. Human Rights Comm. v. Simpsons-Sears</a></em>, 1985 CanLII 18 (SCC), [1985] 2 SCR 536</p>
</blockquote>
<p>However, intent or reasons also matter for the proper course of remedy.</p>
<p>If a policy that is neutral on its face causes adverse effects on individuals due to protected grounds, it must be eliminated if there is no rational reason for the policy to exist.</p>
<p>A neutral policy that are genuinely established for proper business reasons is also not illegal if upon request reasonable accommodations to the requirements are provided or attempted to the point of undue hardship.</p>
<p>In general, human rights laws impose a duty to accommodate upon persons subject to them like service provides, employers or landlords so that actions are taken, if possible, reasonable and not posing an undue hardship to the provider, to to eliminate or reduce the negative impact an individual suffers due to a protected characteristic.</p>
<blockquote>
<p>I heard some residential leases prohibit any open flames including candles. Since many religions use candles, wouldn't this be an illegal form of discrimination of a protected class? Or does that not apply because the rule is applied to everyone equally.</p>
</blockquote>
<p>The first step is to determine whether using candles are in fact part of a sincere religious practice, the hindering of which would violate the rights of the believer. Simply liking the scent of candles when they read the Book is likely not enough to establish that the freedom of religion would be violated. Lighting Shabbat candles on the other hand is much more likely to be recognized as a religious practice.</p>
<p>If a discrimination practice is established at first view, the landlord would need to justify its decision, e.g. fire safety. It is not exempt just because &quot;the rule is applied to everyone equally&quot;.</p>
<p>If the reason for the discrimination is justifiable and reasonable accommodation is not possible, it is not illegal. Conformation to e.g. legal requirements like fire or health and safety codes is often a defence for private individuals (though the complainant may raise claims against the government). However, a duty to accommodate (to a reasonable extent) still exists, e.g. the landlord may need to consider the tenant in priority for similar properties under its constrol that allow open flames (if available).</p>
<blockquote>
<p>IIRC they came out with a gaming console that had a video camera to monitor the user's movement. It didn't register well for people with dark skin (e.g. black).</p>
</blockquote>
<p>Like said above, adverse effects based on protected grounds can be illegal discrimination and can give rise to a duty of accommodation. But this case is more tricky and I didn't find any clear case law on similar situations. It would depend on if the company did all it commercially reasonably could do to eliminate or reduce the impacts. A physical limitation caused by hardware (e.g. filter lenses) may be more easily justified than a lack of darker-skinned training samples in their statistical learning algorithm. Even if a successful discrimination claim is established, the damages may also be limited in this context (but an automatic system that decides on home mortgages and are discriminatory unjustifiably can lead to significantly more damages).</p>
