|Journal||Canadian Labour and Employment Law Journal|
In 2006 Ontario undertook major reforms to its human rights enforcement regime, eliminating the human rights commission's "gatekeeper" function and introducing a "direct access" modelfor the adjudication of complaints. Drawing on extensive primary research, this paper explores the historical antecedents to current debates about the appropriate model for human rights enforcement, by describing and analyzing four themes associated with the enactment of Ontario's 'fair practices" statutes in the 1950s - predecessors of the present-day Human Rights Code. As the author explains, those statutes prohibited particular types of discrimination based on race, religion, nationality and other grounds, and were enforced through an administrative process that was intended to have a remedial rather than punitive focus. The first theme relates to a tension in the arguments advanced by the social activists who campaigned for fair prac- tices: those arguments had both a "negative" aspect, which highlighted the harm caused by discrimination and the immorality of discriminatory conduct, and a "positive" aspect, which emphasized the importance of creating equal opportunity. The second theme is the idea of the public responsibility of both governments and citizens to act against discrimination. The third theme con- cerns the views expressed by fair practices activists on the role to be played by law's coercive power, particularly the distinction they drew between prejudice and discrimination, and the emphasis they placed on conciliation as opposed to adjudication in the enforcement process. The fourth and final theme arises from the actual experience of using fair practices legislation to achieve social change. In the author's view, each of those themes raises ongoing questions about the enforcement of human rights statutes, and more generally about the potential of law as an instrument in the struggle against inequality.