S.C.C. Upholds Affirmative Action

Canadian National Railway Co.v. Canada (Human Rights Comm.) and Action travail des femmes (1987), 8 C.H.R.R. D/4210 (S.C.C.)

The Supreme Court of Canada unanimously reverses a decision of the Federal Court of Appeal and reinstates an order of a Tribunal requiring Canadian National Railway to hire one woman in every four new hires into unskilled blue-collar jobs.

A Canadian Human Rights Tribunal ruled that Canadian National Railway had discriminated against women in the St. Lawrence region who were seeking employment in nontraditional blue-collar jobs. Women held only 0.7 percent of blue-collar jobs in the region, and the Tribunal found that CN Rail's recruitment, hiring and promotion policies prevented and discouraged women from working in blue-collar jobs. As part of a comprehensive remedial order, the Tribunal ordered CN Rail to hire one woman in every four new hires into blue-collar positions until the representation of women reached 13 percent, which is the national percentage for women working in equivalent jobs.

CN Rail appealed this decision to the Federal Court of Appeal which ruled that the Tribunal did not have authority to impose a hiring quota on CN Rail because s. 41(2)(a) allows the Tribunal to prescribe measures which will prevent discriminatory practices from occurring in future, but not to remedy the consequences of past discrimination.

The Supreme Court of Canada overturns this decision of the Federal Court, ruling that the Tribunal was within its jurisdiction under s. 41(2)(a) of the Act in making the order it did. Under this s., the Tribunal may order the adoption of a special program designed "to prevent the same or a similar (discriminatory) practice occurring in the future." The measures ordered by the Tribunal, including the hiring quota, were designed to break a continuing cycle of systemic discrimination against women. The goal is not to compensate past inactions or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past. Rather, an employment equity program, much as the one ordered by the Tribunal in the present case, is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forebears. When confronted with systemic discrimination, the type of order issued by the Tribunal is the only means by which the purpose of the Canadian Human Rights Act can be met. In any program of employment equity, there simply cannot be a radical disassociation of "remedy" and "prevention," since there is no prevention without some form of remedy.

The Court allows the appeal and restores in its entirety the order of the Tribunal.

A cross-appeal by CN Rail, by which it sought to set aside the entire decision and order of the Tribunal, is dismissed.

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