View cases - Stewart McKelvey

3to the complainants would not have the effect of preventing the discriminatory practice in thefuture.[8] In support of its position, the Commission relies on the SCC decision in CN v. Canada(CHRC), [1987] 1 S.C.R. 1114 (Action Travail des Femmes). In this case, the ATF, a publicinterest pressure organization, filed a human rights complaint alleging that CN discriminated in itshiring and promotion practices by denying employment opportunities to women in certainunskilled blue-collar jobs.[9] The Tribunal substantiated the complaint and ordered, in effect, an ‘employment equityprogram’ to address the systemic discrimination. CN appealed arguing that the Tribunal lackedthe power to make this kind of remedial order under s.41(2)(a) of the CHRA (now 53(2)(a)).2010 CHRT 27 (CanLII)[10] The SCC disagreed pointing out that this provision was designed to deal with the problemof systemic discrimination and the employment equity program was designed to break thecontinuing cycle of discrimination. More to the point, the Court noted that the goal was not tocompensate past victims or provide new opportunities for specific individuals who have beenunfairly refused specific jobs or promotions in the past.A. Conclusion on Cease and Desist Order[11] In my opinion, the Commission cannot rely on the ATF decision. The present case doesinvolve a systemic complaint. ATF involved a complaint by a public interest group on behalf of alarge number of alleged victims of a discriminatory practice. This is a case of two separateindividual complainants with the same complaint. It is not a group complaint. What thecomplainants are asking is to have their remedy extend beyond their individual complaints.[12] Further, and as this Tribunal pointed out in its previous decision, its finding that s.15(1)(c)offends the Charter is not a legal precedent and is applicable only to the facts of this case. In thesecircumstances, s.15(1)(c) remains operative and may be relied upon by other respondents as a