Seneca College of Applied Arts and Technology v. Bhadauria
 2 S.C.R. 181
Supreme Court of Canada
Present: Laskin C.J. and Dickson, Beetz, Estey, McIntyre,
Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
[The issue here is whether a refusal to hire someone because of their race is unlawful under the common law. The employee argued that, since the Human Rights Code prevents this, the courts should recognize a new ‘tort’ preventing this type of discrimination. The Court of Appeal accepted this argument, but in this decision, the Supreme Court overturns that decision. What argument does the Court rely on?]
Discrimination by way of repeated denial of an employment opportunity on the alleged ground of racial origin does not give rise to a common law tort, especially when The Ontario Human Rights Code provides for an administrative inquiry and remedial relief and allows a wide appeal to the Court on both law and fact. It was open to the plaintiff to invoke the procedures of the Code and her failure to do so did not entitle her to sue at common law or to found a right of action on alleged breach of the Code.
Held: The Ontario Court of Appeal erred in supporting a tort action of discrimination and the appeal must accordingly be allowed and the action dismissed.
The judgment of the Court was delivered by
LASKIN C.J.:-- The issue in this appeal is whether this Court should affirm the recognition by the Ontario Court of Appeal of a new intentional tort. The tort was recognized to protect a plaintiff against unjustified invasion of his or her interest not to be discriminated against in respect of a prospect of employment on grounds of race or national origin. The case was argued in the Ontario Court of Appeal on the alternative footing that a civil right of action flowed directly from a breach of The Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended by 1971 (Ont.), c. 50, s. 63; 1972 (Ont.), c. 119 and 1974 (Ont.), c. 73. Wilson J.A., having found that the tort arose at common law through the invocation of the public policy expressed in the Code as supplying applicable standards, refrained from addressing the alternative argument.
In this Court, considerable emphasis, pro and con, was laid on the question whether a breach of the Code could itself be sufficient to establish civil liability without calling in aid common law principles relating to intentional invasions of legally protected interests. It is common ground that there is no known case in this country, at least in common law jurisdictions, where such a tort is recognized on either of the two grounds on which it was posited by the plaintiff-respondent; nor were counsel able to produce any instance in a comparable foreign jurisdiction.
In my opinion, the attempt of the respondent to hold the judgment in her favour on the ground that a right of action springs directly from a breach of The Ontario Human Rights Code cannot succeed. The reason lies in the comprehensiveness of the Code in its administrative and adjudicative features, the latter including a wide right of appeal to the Courts on both fact and law. I will come to the provisions of the Code shortly.
The facts alleged disclose that the plaintiff is a highly educated woman of East Indian origin with an earned Ph.D. degree in mathematics. She holds a valid Ontario teaching certificate and has had seven years' teaching experience in the field of mathematics. In response to newspaper advertisements placed by the defendant College, the plaintiff made some ten separate applications for a teaching position in the period between June 28, 1974 and May 19, 1978. Although letters were sent to her by the College in response to her applications, telling her she would be contacted for an interview, she was never given an interview nor any reason for the rejection of her applications. She alleged that the positions for which she applied were filled by others without her high qualifications but who were not of East Indian origin. She claimed that there was discrimination against her because of her origin and that the College was in breach of a duty not to discriminate against her, and also in breach of s. 4 of The Ontario Human Rights Code, as amended. She claimed damages for being deprived of teaching opportunities at the College in which she was still interested and for being deprived of the opportunity to earn a teaching salary. Moreover, she suffered mental distress, frustration, loss of self-esteem and dignity, and lost time in repeatedly applying for advertised positions for which she was denied the opportunity to compete.
The Ontario Human Rights Code, in its present form, is the culmination of a successive series of enactments beginning with The Racial Discrimination Act, 1944, 1944 (Ont.), c. 51, and continuing with The Fair Employment Practices Act, 1951, 1951 (Ont.), c. 24, and with The Fair Accommodation Practices Act, 1954, 1954 (Ont.), c. 28. These enactments, addressed, respectively, to notices or signs or advertising, to employment, and to places of public accommodation were designed to eliminate discriminatory treatment of a person on grounds selected by the Legislature as being irrelevant to the substantive considerations involved and as being, objectively, criteria that were offensive and violative of equality before the law. In The Racial Discrimination Act, 1944, the prohibited criteria were race or creed; in The Fair Employment Practices Act, 1951, they were race, creed, colour, nationality, ancestry or place of origin; and the same prohibited criteria were specified in The Fair Accommodation Practices Act, 1954. In 1962, these Acts and some others (The Female Employees' Fair Remuneration Act, The Ontario Human Rights Commission Act and The Ontario Anti-Discrimination Commission Amendment Act, 1960-61, were gathered up and incorporated into a Code, entitled The Ontario Human Rights Code, 1961-62. The present Code is a more elaborate version of the 1961-62 Code which did not contain any provisions for an appeal from a decision or order of a board of inquiry.
The present Ontario Human Rights Code contains a declaration of policy in its preamble (being the same declaration that was in the original Code), as follows:
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;
AND WHEREAS it is public policy in Ontario that every person is free and equal in dignity and rights without regard to race, creed, colour, sex, marital status, nationality, ancestry or place of origin;
AND WHEREAS these principles have been confirmed in Ontario by a number of enactments of the Legislature;
AND WHEREAS it is desirable to enact a measure to codify and extend such enactments and to simplify their administration;
Part I of the Code sets out the prohibition of discrimination on the grounds of race, creed, colour, sex, marital status, nationality, ancestry or place of origin. The prohibitions are directed to (1) notices, signs, symbols, emblems or other representations (s. 1); (2) denial of or discrimination respecting access to accommodation, services or facilities in any place to which the public is customarily admitted (s. 2); (3) occupancy of commercial units and housing accommodation (each defined in s. 19), subject to an exception in respect of sex as to housing accommodation where occupancy, other than that of the owner or his family is restricted to those of the same sex (s. 3); (4) employment (and here age, defined to cover the span from age 40 to 64 inclusive, is added to the prohibited grounds of discrimination), whether it be a reference or recruitment for employment, or dismissal or refusal to employ or refusal to train or promote or transfer, or with respect to any term or condition of employment or with respect to discriminatory advertising or applications for employment, and employment agencies are also brought under the general ban of discrimination (s. 4). There are exceptions here (1) in respect of age, sex or marital status where this is a bona fide occupational classification; (2) in respect of exclusively religious, philanthropic, educational, fraternal or social organizations not operated for private profit; (3) in respect of domestic employment in a single family residence; and (4) in respect of bona fide superannuation or pension or insurance plans that make any distinction or exclusion or preference between employees because of age, sex or marital status. Special provision is made in s. 4a. to prohibit trade unions from discriminating on any of the prohibited grounds (including age) in respect of membership therein or by expulsion or suspension and, similarly, as to self-governing professions. …
Part III of the Code deals with complaint procedures, and what is noteworthy is that the lodging of complaints is not limited to persons who allegedly suffer any prohibited discrimination, and the Commission too may initiate a complaint. …. Under s. 14b.(6), a board of inquiry (subject to the provisions of s. 14d. respecting appeals) "has exclusive jurisdiction and authority to determine any question of fact or law or both required to be decided in reaching a decision as to whether or not any person has contravened this Act or for the making of any order pursuant to such decision".
Under s. 14c., a board of inquiry, on finding a contravention of the Code may order any offending party "to do any act or thing that, in the opinion of the board, constitutes full compliance ... and to rectify any injury caused to any person or to make compensation therefor". Section 14d. provides for an appeal by any party to a hearing before a board from the board's decision or order to the Ontario Supreme Court in accordance with that Court's rules. The Minister has a right to be heard on the appeal. The scope of the appeal is set out in s. 14d.(4) in the following terms:
(4) An appeal under this section may be made on questions of law or fact or both and the court may affirm or reverse the decision or order of the board or direct the board to make any decision or order that the board is authorized to make under this Act and the court may substitute its opinion for that of the board.
It is difficult to envisage any wider appeal than that prescribed by the foregoing provision….
The comprehensiveness of the Code is obvious from this recital of its substantive and enforcement provisions. …
What we have here, if the Court of Appeal is correct in its conclusion, is a species of an economic tort, new in its instance and founded, even if indirectly, on a statute enacted in an area outside a fully recognized area of common law duty:
It was conceded that the relevant provisions in this case, if applicable, are in s. 4(1)(a) and (b) which read as follows:
4.--(1) No person shall,
(a) refuse to refer or to recruit any person for employment;
(b) dismiss or refuse to employ or to continue to employ any person;
On the facts here, taken as provable, there was a refusal to recruit for employment and, certainly, a refusal to employ. However, a refusal to enter into contract relations or perhaps, more accurately, a refusal even to consider the prospect of such relations has not been recognized at common law as giving rise to any liability in tort.
None of the cases considered in the Ontario Court of Appeal, all arising at common law and under the civil law of Quebec, relate to a refusal to recruit or to employ. They exhibit a strict laisser faire policy, even where the business or service whose facilities were denied on the ground of colour or race or ancestry was under government licence: see Loew's Montreal Theatres Ltd. v. Reynolds [(1919), 30 Que. K.B. 459]; Franklin v. Evans [(1924), 55 O.L.R. 349]; Christie v. The York Corporation [ S.C.R. 139]; Rogers v. Clarence Hotel [ 2 W.W.R. 545]. In those cases where a plaintiff succeeded in his claim for damages for denial of services or accommodation on the ground of colour or race, recovery was based on an innkeeper's liability: see Constantine v. Imperial London Hotels, Ltd. [  2 All E.R. 171] and cf Rothfield v. North British Railway Co. [  S.C. 805]…
Another support, perhaps the strongest support, for the result reached by the Ontario Court of Appeal lay in the approach taken by Mackay J. in Re Drummond Wren [  O.R. 778], where a restrictive covenant in a deed of land, prohibiting the sale of the land to "Jews, or persons of objectionable nationality", was struck down as offensive to public policy as expressed, inter alia, in The Ontario Racial Discrimination Act, 1944. As Wilson J.A. pointed out, Mackay J. invalidated the covenant not because it violated the Act but because it was contrary to the public policy expressed in the Act; and she added: "This is the distinction which underlies the alternate bases on which the plaintiff has put her claim."
I do not myself quarrel with the approach taken in Re Drummond Wren, but it is necessary to point out that a different view on public policy was taken by the Ontario Court of Appeal in Re Noble and Wolf [ O.R. 503], a case not mentioned by Wilson J.A. Moreover, when this last-mentioned case came to this Court as Noble and Wolf v. Alley [  S.C.R. 64], the obnoxious covenant in that case, similar to the one in Re Drummond Wren, was held unenforceable for uncertainty and as a restraint on alienation, property law grounds, and the Court made no pronouncement on public policy, although the Court of Appeal had done so, disagreeing therein with Re Drummond Wren.
Having canvassed the cases that I have mentioned, Wilson J.A. [in the Court of Appeal] began her concluding reasons in these words:
Against this background of authorities, we are called on to decide the matter now on appeal before us, namely, assuming that the plaintiff can prove the allegations set forth in her statement of claim, do they give rise to a cause of action at common law and, if they do not, do they give rise to a civil cause of action under The Ontario Human Rights Code?
In my view, they give rise to a cause of action at common law. While no authority cited to us has recognized a tort of discrimination, none has repudiated such a tort. The matter is accordingly res integra before us.
She followed this by quoting the preamble of The Ontario Human Rights Code and continued as follows:
I regard the preamble to the Code as evidencing what is now, and probably has been for some considerable time, the public policy of this Province respecting fundamental human rights. If we accept that "every person is free and equal in dignity and rights without regard to race, creed, colour, sex, marital status, nationality, ancestry or place of origin", as we do, then it is appropriate that these rights receive the full protection of the common law. The plaintiff has a right not to be discriminated against because of her ethnic origin and alleges that she has been injured in the exercise or enjoyment of it. If she can establish that, then the common law must, on the principle of Ashby v. White et al., supra, afford her a remedy.
I do not regard the Code as in any way impeding the appropriate development of the common law in this important area. While the fundamental human right we are concerned with is recognized by the Code, it was not created by it. Nor does the Code, in my view, contain any expression of legislative intention to exclude the common law remedy. Rather the reverse since s. 14(a) appears to make the appointment of a board of inquiry to look into a complaint made under the Code a matter of ministerial discretion.
I confess to some difficulty in understanding the basis of the learned justice's observation that "While the fundamental human right we are concerned with is recognized by the Code, it was not created by it" (or, I assume, by its predecessors). There is no gainsaying the right of the Legislature to establish new rights or to create new interests of which the Court may properly take notice and enforce, either under the prescriptions of the Legislature or by applying its own techniques if, on its construction of the legislation, enforcement has not been wholly embraced by the terms of the legislation
In the present case, the enforcement scheme under The Ontario Human Rights Code ranges from administrative enforcement through complaint and settlement procedures to adjudicative or quasi-adjudicative enforcement by boards of inquiry. The boards are invested with a wide range of remedial authority including the award of compensation (damages in effect), and to full curial enforcement by wide rights of appeal which, potentially, could bring cases under the Code to this Court. …
The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code.
For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.
The appeal is, accordingly, allowed, the judgment of the Ontario Court of Appeal is set aside and the judgment of Callaghan J. dismissing the action is restored. In the circumstances, there will be no order as to costs, either here or in the courts below.