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New Brunswick’s Human Rights Act: Amendments proposed

human rightsOn March 15, 2017, Bill 51, An Act to Amend the Human Rights Act, received first reading in the New Brunswick legislature, and second reading the next day. The Bill has been referred to the Standing Committee on Economic Policy.

The goal of the changes is to modernize the legislation and increase its efficiency. Indeed, this has been the first extensive review of the legislation in 25 years. These changes come on the 50th anniversary of the Human Rights Act. The ultimate goal of the review was to evolve with society and ensure that values are protected. Bill 51 aims to do just this.

Post-Secondary Education, Training and Labour Minister Donald Arseneault stated:

The act has not been revised in quite some time, and so the changes we are making will better reflect today’s realities…These amendments will help the most vulnerable New Brunswickers have equal opportunities to participate in society and contribute to our economy.

There are several proposals to amend the human rights legislation of New Brunswick.

One significant proposal is to include two new grounds in the list of prohibited grounds of discrimination: family status and gender identity or expression. Along the same lines, a new section would be created listing all of prohibited grounds of discrimination that would be referred to throughout the legislation, with family status and gender identity or expression included in this list. That said, an exception would also be created stating that differential treatment based on a prohibited ground would not constitute discrimination if the Commission determines that it is based on a bona fide requirement or qualification justifying the difference.

Another important change is that the definition of “mental disability” would now include: an intellectual or developmental disability; a learning disability, or dysfunction in one or more of the mental processes involved in the comprehension or use of symbols or spoken language; and a mental disorder.

Furthermore, Bill 51 would clarify that it is not allowed to directly or indirectly express a limitation, specification or preference, or require a job applicant to furnish any information regarding a prohibited ground of discrimination regarding an application for employment, publication of an advertisement connected with employment, or an oral or written inquiry regarding employment. However, it is important to note that there would also be a provision stating that any differential treatment based on physical disability or mental disability would not apply to the operation of the terms or conditions of a bona fide group or employee insurance plan.

There would also be a provision prohibiting persons from discriminating against others based on a prohibited ground of discrimination in a notice, sign, symbol, emblem or other representation that is published, displayed, or permitted to be published or displayed on the premises of a newspaper, through a television or radio broadcasting station, or any other means.

For clarification purposes, a section would be added to the part regarding time limits for making complaints, indicating that if a continuing violation is alleged, the complaint must be filed within one year of the last alleged instance of the violation.

There would also be a new section added regarding delegations of certain duties and powers, where the Commission would be able to delegate in writing to any person some of its duties or powers. The Commission would also be able to impose the terms and conditions that it considers appropriate on the delegation.

The Commission would also be able to use its discretion and dismiss the complaint at any stage of the proceedings in whole or in part regarding complaints about merits, frivolous or bad faith complaints, complaints that are outside of the jurisdiction of the Commissioner, complaints that have already been dealt with, complaints that have been abandoned, or complaints that have achieved a reasonable settlement offer that was abandoned.

Not only would the Commission be able to dismiss complaints, but it would also be able to make inquiries and endeavor to affect settlements of the complaint; if a person fails to comply with an order or requirement of the Commissioner, the Commission may apply to a judge of the Court of Queen’s Bench of New Brunswick for an order to comply.

Other proposed changes involve correcting inconsistencies between English and French versions of the legislation, granting protections to members and staff of the Commission regarding actions or omissions made in good faith under the legislation, allowing the Commission to delegate powers of investigation and decision–making authority to another human rights commission in the event of a conflict of interest, ensuring that a proceeding under the legislation is not invalid because of a defect in form or technical irregularity at the Board of Inquiry stage, and clarifying the prerequisites for seeking consent for a prosecution of an offence under the legislation.

Nathalie Chiasson, Commission Chairperson stated:

Our society is constantly evolving, and the modernization of New Brunswick’s Human Rights Act is significant for the Human Rights Commission…These new measures will enable us to better help New Brunswickers access our services.

What does this mean for employers?

Employers are recommended to become familiar with these provisions. In addition, it is recommended that employers review their anti–discrimination and anti–harassment policies and procedures to ensure that they have created an inclusive working environment that is in line with the spirit of the legislation. When in doubt about whether a particular practice is in compliance with human rights provisions, it is always recommended to obtain legal advice.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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