Does Reprisal (s. 8) Require a Social Area? Can a Reprisal Application be Commenced Against a Non-Respondent?

Posted: July 20, 2013 in Reprisal
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It has been argued in the past that a reprisal application cannot be commenced outside of one of the five social areas listed in the Code (employment, housing, services, contract or membership). This situation may arise when a relative of a respondent approaches an applicant in a crowded mall for example, and berates the applicant for filing an application against the respondent.

It has also been argued that a reprisal application cannot be brought against an individual who is not a Respondent in the initial Application. This would arise where the Applicant in the aforementioned scenario then commence an application against the relative, who is not a party to the initial application.

While the Tribunal has not conclusively dealt with these issues specifically, it seems apparent that the a reprisal application can be commenced against a party who is not an existing respondent, and does not require a social area.

If the Tribunal were to find that a social area is required for a reprisal application, the Tribunal would be reading a restrictive element into the Code that would expose applicants to intimidation and threats without recourse. I will illustrate this by example:

Assume that Joe and Bob work together. Bob is African American. Joe makes several clear and damaging racist remarks to Bob in the workplace. Bob files an Application with the Tribunal in the social area of employment on the enumerated ground of race. The employer investigates and discharges Joe from his employment because of the severity of the discrimination. Joe’s wife repeatedly calls Bob and Bob’s family, swearing at him for bringing the Application that resulted in her husband’s termination.

To allow intimidation and threats for claiming human rights, even if outside of a social area, would defeat the purpose of section 8, which as the Tribunal has stated in Noble is to “ensure that individuals may claim and enforce the fundamental rights embodied in the Code without fear or intimidation”.

The necessity of an existing Respondent or social area is also not provided for statutorily. Section 8 does not refer to social area. It simply states that the Applicant has a right to claim his or her rights, free from reprisal. It does not say free from reprisal in a social area and it does not say free from reprisal from a Respondent. Moreover, the restrictive elements are not found anywhere within the three-part test of the Tribunal.

Conclusion

It is unlikely that the Tribunal would accept either argument:

  1. That a reprisal application must be commenced in one of the five social areas, or
  2. That a reprisal application cannot be commenced against an individual who is not a respondent in an initial human rights application.

The Supreme Court of Canada has stated on a number of occasions that the Code ought to be interpreted in a broad and expansive manner to provide meaning to human rights in Canada. It is highly unlikely that the Tribunal would restrict reprisal applications without guidance from the Legislature.

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