Adjudicating systemic equality issues: the unfulfilled promise of action travail des femmes adjudicating human rights in the workplace: after ontario's pinto report, where do we go next

Abstract

A quarter-century ago, in the Action Travail des Fermmes case, the Supreme Court of Canada gave strong endorsement to the principle that systemic remedies should be widely available in human rights cases to combat entrenched patterns of discrimination, and indicated that such remedies could be expected to be effect- ive in meeting that objective. This paper considers developments in the area of systemic remedies since Action Travail des Fenmes was decided, and concludes that the promise held out by the Supreme Court remains unfulfilled and indeed that the viability of systemic remedies themselves is very much in question. At the federal level, amendments to the Canadian Human Rights Act retrenched the tri- bunal's remedial powers, by seemingly inhibiting the imposition of hiring quotas in cases where systemic discrimination in employment had been established In addition, the generation-long saga of the McKinnon case in Ontario laid bare the almost insurmountable challenges of enforcing systemic orders against a recalci- trant respondent, and revealed the limits of the human rights system's institutional capacity. Most recently, in the Moore decision, the Supreme Court has cast doubt even on the availability of systemic remedies, by holding - on the basis of a superficial analysis and contrary to its own long-standing jurisprudence - that only individual remedies should have been ordered in a case which unmistakeably had systemic dimensions. While the decision may reflect the Court's concern that the tribunal decision intruded excessively into the realm of public policy and finance, it provides no meaningfd guidance on how government can be held accountable for its human rights obligations.