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Social condition – an option for human rights commissions

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The Concept of “Social Condition”

The addition of “social condition” to human rights legislation has been proposed as one option for addressing economic inequality in Canada.[156] As well, it is a possible response to the ICESCR Committee’s recommendation that social and economic rights be expressly incorporated into federal and provincial human rights legislation.
Social condition is only one aspect of social and economic rights. It refers to a prohibited ground of discrimination and harassment in human rights legislation, similar to other grounds such as “sex”, “age”, and “place of origin”, for example. The precise term “social condition” as a prohibited ground of discrimination is not widely used either domestically or internationally.[157] As discussed above, Quebec is the only Canadian jurisdiction that prohibits discrimination based on the precise term “social condition”.

Internationally, the literature indicates that only Spain’s constitution presently uses the term “social condition” as a prohibited ground of discrimination. An early version of Portugal’s constitution used the term, however the revised 1992 version does not. It would appear that only one regional human rights instrument, the American Convention on Human Rights uses the term “birth or any other social condition“. The preamble of the World Health Organization’s constitution reads, “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”.[158]

In Quebec, there is no statutory definition for social condition. It has largely been defined by jurisprudence. Earlier cases focused on formal equality; however, in the 1990’s the focus shifted to a more purposive and liberal definition, with a greater emphasis on substantive equality.[159] The standard definition used by the Quebec Human Rights Tribunal comes from a 1993 decision.[160] The tribunal recognized an objective and subjective component to the term:

The definition of “social condition” contains an objective component. A person’s standing in society is often determined by his or her occupation, income or education level, or family background. It also has a subjective component, associated with the perceptions that are drawn from these various objective points of reference. A plaintiff need not prove that all of these factors influenced the decision to exclude. It will, however, be necessary to show that as a result of one or more of these factors, the plaintiff can be regarded as part of a socially identifiable group and that it is in this context that the discrimination occurred.[161]

The Quebec human rights commission’s 1994 policy position on social condition[162] describes it as referring to a rank, a social position or class attributed to someone principally because of his or her level of income, occupation and education, having regard to the objective and subjective components of each. Quebec courts have found social condition to include temporary situations[163] such as unemployment. As well, social condition is distinct from “social origin”, a term that is used in Newfoundland’s human rights legislation, as “social origin” relates to a person’s birth and past and not a person’s current rank and position in society.
The difficulty associated with defining and operationalizing the concept has been identified both by the Quebec commission and by those who have considered including the concept as a ground within federal or provincial human rights legislation. In a 1994 Report on Human Rights in British Columbia, author William Black described it as a ground to protect poor people. As a concept it applies to:

...people living in poverty, people with certain occupations such as domestic workers, people branded as inferior because they have difficulty reading and writing, and people whose dress or patterns of speech identify them as coming “from the wrong side of the tracks...”.[164]

It is a term that lacks a well-accepted meaning and does not lend itself to a precise definition. Rather, it must be interpreted in a broad, liberal and flexible manner and must take into account a variety of factors including social origins, level of education, occupation and income. The factors may not be exhaustive and may need to be adjusted to meet the circumstances of the particular case.

Calls for Reform: Arguments for Adding Social Condition

It is well recognized that poverty has historically been and continues to be a significant source of social stigma:

For people who are poor, negative stereotypes and social stigma are a constant fact of life: in the popular media, in their dealings with landlords, with financial institutions, with school officials, with stores and sales staff, with neighbours and strangers, with social welfare agencies, with other government officials, and with the legal system.[165]

Poverty is a source of serious material, social and political disadvantage in Canadian society. People who are poor are subjected to stereotyping, prejudice and discrimination in all aspects of life including employment, the provision of goods and services and in accommodation. However, the systemic disadvantaging which poverty brings had no explicit recognition in most Canadian anti-discrimination laws.

The Canadian Bar Association (British Columbia Branch) has eloquently summarized the plight of the poor:

People who live in poverty are subject to widespread systemic discrimination. These people are routinely denied housing and access to services and they are reviled in popular culture as being morally inferior. People who live in poverty are not even on the political agenda. They are marginalized to the point of invisibility. This is precisely the kind of societal disadvantage and exclusion that human rights legislation is meant to alleviate. [166]

There is a frequent intersection of poverty and other forms of disadvantage explicitly recognized under human rights legislation, including poverty and gender, poverty and disability, poverty and race, to name a few. Without protection on the basis of poverty, human rights legislation may be unable to truly address the complex experience of those who are most disadvantaged.[167] The poor also comprise a discrete and identifiable group that is subject to its own particular forms of discrimination and disadvantage.[168] Given the socially and politically marginalized status of the poor, commentators have highlighted the fact that legislation designed specifically to ameliorate the condition of groups facing historic and continuing discrimination does not contain protection for low socio-economic status. This omission “reflects, reinforces, and facilitates continued systemic bias” against the poor in Canadian society.[169]

In addition to the obvious advantages to be gained from inclusion of social condition as a prohibited ground of discrimination, commentators have noted subtle benefits. For example, as the Supreme Court of Canada has traditionally taken significant guidance from human rights tribunals on issues of equality, including social and economic rights in human rights legislation will promote the development of equality jurisprudence that can be carried over to Charter claims.[170]

There has been strong support for the inclusion of “social condition” in the Canadian Human Rights Act by the Canadian Senate and the Canadian Human Rights Commission. The Canadian Human Rights Commission has acknowledged that poverty is a fundamental human rights issue in Canada, inextricably linked with violations of the right to equality guaranteed under the Canadian Human Rights Act. Chief Commissioner Michelle Falardeau-Ramsay stated in her introduction to the Canadian Human Rights Commission’s 1997 Annual Report:

[P]overty is a serious breach of equality rights which I believe has no place in a country as prosperous as ours. Experience suggests that it is largely those who are most vulnerable in our society by virtue of the various prohibited grounds of discrimination – for example, women, Aboriginal people or people with disabilities - who are also more likely to be poor...[I]t is difficult to argue that poverty is not a human rights issue...The international community has recognized for some time that human rights are indivisible, and that economic and social rights cannot be separated from political, legal or equality rights. It is now time to recognize poverty as a human rights issue here at home as well.[171]

In the preface to the 1998 Annual Report, Ms Falardeau-Ramsay reiterated the need to consider social and economic rights within a human rights framework in Canada.[172]

In 1998, Senator Erminie Cohen introduced Bill S-11 which would have added social condition as a prohibited ground of discrimination to the Canadian Human Rights Act. The Bill passed unanimously through the Senate and, on October 19, 1998, received first reading in the House of Commons. On April 8, 1999 Justice Minister Anne McLellan announced the creation of the Canadian Human Rights Act Review Panel to consider, among other things, the addition of “social condition” to that Act. Five days later, Bill S-11 was defeated on second reading.

In June 2000, the Review Panel released its report recommending the addition of social condition as a ground in the Canadian Human Rights Act. The report summarizes the results of the Review Panel’s research and consultations and notes the societal barriers and widespread discrimination faced by the poor. It states that while some barriers related to poverty can be challenged using existing grounds, this approach is simply a “piecemeal solution that fails to take into account the cumulative effect of the problem”[173]. Accordingly, it recommends the inclusion of social condition, defined in a manner similar to the Quebec definition but limited only to disadvantaged persons. The report acknowledges a need for exemptions and some deference to government where complex social-policy issues are involved but also recommends that Cabinet engage in a process of reviewing government programs to reduce discrimination against the poor.

The Review Panel declined to recommend the addition of social and economic rights recognized in international covenants, such as the right to adequate food, housing and health care. However, it did state that the Canadian Human Rights Commission should have the duty to monitor and report to Parliament and the UN on the federal government’s compliance with international human rights treaties and that “Provincial and territorial human rights commissions...may wish to comment on matters within their respective jurisdictions.”[174] The Minister of Justice has indicated that the government of Canada will review the report in detail. To date, there has been no indication as to whether the recommendation with respect to social condition will be adopted.

Incorporation of social condition in the Canadian Human Rights Act is seen as a starting point, as many of the most important areas such as health, education and housing, and the majority of human rights claims, fall under provincial jurisdiction. Some of the provinces have also considered the issue. Human rights reform proposals in New Brunswick, Saskatchewan and British Columbia have indicated strong support for inclusion of social condition in their human rights legislation. Alberta, British Columbia, Newfoundland and Prince Edward Island have also had recommendations to include some form of protection for level or source of income.[175] The Northwest Territories is contemplating including the ground in its new human rights law.

Building on a the 1994 report by Bill Black, in a January 1998 document entitled Human Rights for the Next Millennium, the BC Human Rights Commission recommended a number of amendments to the BC Human Rights Code. The BC Commission’s primary recommendation was for an amendment that would add protection from discrimination based on “social condition”. In the alternative, the BC Commission recommended adding “lawful source of income” as a prohibited ground of discrimination. In support of the primary recommendation, Human Rights for the Next Millennium states:

An overwhelming majority of submissions stated that “lawful source of income” does not adequately protect poor people in general from discrimination in accommodation, service, facility, purchase of property, employment and by unions and associations. They suggest that a more appropriate term would be “social condition”, which has been judicially interpreted to include people in receipt of social assistance, as well as single women and single mothers. This amendment would also be in keeping with our obligations as a signatory of the United Nations’ International Covenant on Economic, Social and Cultural Rights.[176]

With the exception of the Northwest Territories, thus far, none of the reform proposals have been acted on by any province.

Concerns with Adding Social Condition

In the debate over social condition, several arguments against its inclusion in human rights legislation have been advanced. One concern is the lack of a broadly accepted meaning or definition for the concept. Due to this lack of clarity, it is argued that including social condition could lead to a flood of tribunal cases and lengthy court litigation aimed at defining and implementing the ground. A related argument is that this new ground would overshadow and detract from traditional grounds of discrimination that require equal attention.[177] A more practical concern is the fact that human rights commissions have limited resources and, in most cases, an existing backlog of cases. The addition of social condition could be an added drain on these resources and could add to the backlog problem.[178]

Another area of concern is that the addition of social condition would give too much discretionary power to an administrative agency and that complainants could abuse such potentially broad jurisdiction. A related issue is whether the new ground would permit human rights commissions to take governments to task for not providing an adequate standard of living for citizens. This raises the same issues faced traditionally by courts in the adjudication of economic and social rights.

In response, advocates for inclusion have noted that including social and economic rights in human rights legislation does not give tribunals unrestricted authority to determine social policy or send a message to decision-makers that they should abandon their concerns about deference to parliamentary sovereignty. It will simply provide much needed guidance about appropriate intervention in matters related to social and economic rights.[179] With respect to concerns that the protection of socio-economic rights will result in decision-makers forcing governments to spend money, it is argued that that the judicial protection of civil and political rights at times imposes positive fiscal obligations on governments.[180]

Limitations of Social Condition as a Means of Addressing Inequality

As mentioned earlier, social condition as a prohibited ground of discrimination in human rights legislation deals only with one aspect of social and economic rights. It deals solely with the proscription of discrimination against the poor[181]. It does not make poverty a violation of domestic human rights legislation or allow human rights commissions to take governments to task for failing to ensure an adequate standard of living. It may have only a limited use in combating homelessness, for example.

Shelagh Day and Gwen Brodsky, two noted experts on women’s equality issues, have examined the Quebec experience with social condition and have concluded that based on the judicial interpretations of social condition in Quebec, the usefulness of the ground may be limited. While social condition might provide an effective avenue to challenge laws and practices that negatively categorize and stereotype the poor, it may not allow challenge to laws and practices that cause, maintain or exacerbate poverty and economic inequality.[182] They warn that including a ground that deals only with negative stereotyping could send a message that this is the only thing human rights legislation needs to address in relation to social and economic rights:

...if nothing else is done in the Act to signal that women’s economic inequality is not consistent with guarantees of equality and non-discrimination, including the ground social condition could, in our view, be misleading and hazardous.[183]

The Review Panel report also confirms that adding social condition to human rights legislation would be only one aspect of finding solutions to the problems experienced by people who are poor. However, the ground would provide a means to challenge stereotypes against the poor and would perform an important educational function.

Anti-poverty groups have supported social condition as a means to combat prejudice and discrimination against the poor. In addition to the practical impact, inclusion of social condition in human rights legislation would have an important symbolic significance:

It would give recognition to the idea that differences in economic status are as much a source of inequality in our society as race, gender or disability...[P]oor Canadians live daily with social stigma and negative stereotypes and face prejudice similar to those who are discriminated against on the other grounds enumerated in the [Canadian Human Rights] Act...Adding “social condition” to the CHRA would send the message to Canadians that prejudice against people who are poor is as unacceptable in our society as prejudice against people who are black or aboriginal or disabled or female.[184]

As Chief Commissioner Falardeau-Ramsay has noted, including “social condition” in human rights legislation is a small part of a much broader issue: how to make the link between the overall question of poverty and the effective enjoyment of human rights.

[156] One author has suggested that the term “poverty” be added to the Ontario Code as a prohibited ground of discrimination in all social areas. The author notes that the underlying philosophy of the Code, as stated in its preamble, the remedies that can be ordered by Boards of Inquiry and the ability of the Commission to pursue an active community role, for example through education, make the Code a suitable tool to address issues of poverty. See S. Turkington, “A Proposal to Amend the Ontario Human Rights Code: Recognizing Povertyism” (1993) 9 J.L. & Social Pol’y 134 [hereinafter Recognizing Povertyism].
[157] H. Berry & M.M. Lepage, “Social Condition – Literature Search” (Canadian Human Rights Act Review, 2000), online: Canadian Human Rights Act Review Homepage <> (date last accessed: 11 January 2001).
[158] Ibid.
[159] A.W. Mackay, T. Piper & N. Kim, “Social Condition as a Prohibited Ground of Discrimination Under the Canadian Human Rights Act” (Canadian Human Rights Act Review, 2000), online: Canadian Human Rights Act Review Homepage, supra note 157.
[160] From Social Condition – Literature Search, supra, note 157.
[161] Québec (Comm. des droits de la personne) v. Gauthier (1993), 19 C.H.R.R. D/312 [English summary].
[162] Commission des droits de la personne et des droits de la jeunesse, “Lignes Directrices sur la Condition Sociale” (31 mars 1994) Cat.
[163] D’Aoust, supra, note 154.
[164] William Black, BC Human Rights Review: Report on Human Rights in British Columbia, (Vancouver: Government of British Columbia, 1994) at 170.
[165] Constitutional Contact with the Disparities in the World, supra, note 9 at 94.
[166] Canadian Bar Association - BC Branch, Human Rights Working Group as cited in BC Human Rights Commission, Human Rights for the Next Millennium (19 January 1998), online: BC Human Rights Commission Homepage <> (date last accessed: 11 January 2001).
[167] Recognizing Povertyism, supra, note 156 at 186.
[168] Although housing is a major area where the poor experience discrimination, it is not the only area. The poor have difficulty accessing services and facilities (including health care and education) and face discrimination in employment.
[169] Constitutional Contact with the Disparities in the World, supra, note 9 at 117.
[170] Jackman & Porter, supra, note 28 at 66-67.
[171] Canadian Human Rights Commission, Annual Report 1997, (Ottawa: Canadian Human Rights Commission, 1997) at 2.
[172] Canadian Human Rights Commission, Annual Report 1998, (Ottawa: Canadian Human Rights Commission, 1998).
[173] Promoting Equality: A New Vision, supra note 5 at 108.
[174] Ibid. at 116.
[175] Social Condition as a Prohibited Ground of Discrimination Under the Canadian Human Rights Act, supra, note 159.
[176] Human Rights for the Next Millennium, supra, note 166 at section 9(a).
[177] Report on Human Rights in British Columbia, supra, note 164 at 171.
[178] Social Condition as a Prohibited Ground of Discrimination Under the Canadian Human Rights Act, supra, note 159.
[179] Jackman & Porter, supra, note 28 at 62.
[180] See for example Schachter v. Canada (Employment and Immigration Commission), [1992] 2. S.C.R. 679.
[181] Some have suggested that it should be a neutral ground that would apply to everyone, rich or poor. In other words, it could provide protection to those whose social condition is one of disadvantage as well as those whose social condition is one of privilege. [For example, Senator Grafstein, Proceedings of the Standing Committee on Legal and Constitutional Affairs, 1st Sess., 36th Parl., (June 4, 1998)].
[182] Women’s Economic Inequality and the Canadian Human Rights Act, supra, note 150. These conclusions are in the particular context of women’s inequality but appear equally applicable to everyone who is poor.
[183] Ibid. at 133.
[184] Michelle Falardeau-Ramsay, Chief Commissioner, Canadian Human Rights Commission, Proceedings of the Standing Committee on Legal and Constitutional Affairs, 1st Sess., 36th Parl., (May 27, 1998).

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