London Free Press

June 11, 1999

The peril of affirmative action

By RORY LEISHMAN
London Free Press

Are human rights commissions above the law or can they be held accountable under the Canadian Charter of Rights and Freedoms? For Bryant Smith, a lawyer in Fredericton, N.B., these are not just academic questions:

They are at the heart of a quixotic legal battle he is waging with the New Brunswick Human Rights Commission.

Smith's troubles with the commission began soon after he signed a one-year contract in June 1988 to serve as an assistant professor in the faculty of law at the University of New Brunswick (UNB). Later that same year, the university initiated an affirmative action program -- Positive Action to Improve the Status of Women -- that was supposed to assure that when a man and a woman were equally qualified for a position, the woman would get preference.

However, when the hiring committee of the UNB law faculty set about finding a suitable candidate for a one-year contract as an assistant professor in spring 1989, it first privately offered the position to two women without even notifying Smith the opening was available. Luckily for Smith, after a third female declined the position, he was hired for a second one-year term.

In view of this experience, Smith filed two complaints with the New Brunswick Human Rights Commission on April 17, 1990, alleging the university had discriminated against him on the basis of sex in the hiring processes for 1989 and was continuing to do so in 1990, contrary to the ban on sex discrimination in Section 3 of the New Brunswick Human Rights Code.

However, instead of supporting Smith, the commission backed the university, by retroactively exempting UNB's affirmative action program from the ban on discrimination in the code and on July 4, 1990, Karl Dore, former dean of law, informed Smith his application for 1990 had been rejected.

At this point, a less determined man than Smith might have given up. Instead, he filed another complaint in which he accused the commission of unlawfully discriminating against him. The commission dismissed this charge and on Feb. 12, 1992, also rejected his original complaints against the university, without so much as giving him a hearing or offering reasons for its decisions.

Smith then proceeded to sue the commission for violating his right under Section 15 of the charter not to be discriminated against on the basis of sex. After considerable legal wrangling, the New Brunswick Court of Appeal dismissed this action, declaring the province's human rights commission cannot be sued.

On March 1, 1999, Smith returned to the charge. This time, instead of trying to sue the commission, he petitioned the court to find that the Brunswick Human Rights Act is incompatible with both the charter and the Constitution.

On the face of it, Smith has a strong case. Section 15 of the charter explicitly states Canadians are entitled to the equal protection and equal benefit of the law without discrimination, except only in the case of, "any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups."

There is no evidence that women applying for teaching positions at UNB or any other Canadian university are disadvantaged. On the contrary, Martin Loney reports in the Pursuit of Division: Race, Gender, and Preferential Hiring in Canada that, "In fact, an examination of recruitment, relative to the numbers in the qualified pool, indicates that women experience some considerable advantage." Grant Brown of the University of Lethbridge concurs. Having reviewed several studies of university hiring practices in Canada, he maintains the data, "suggests that qualified women are twice as likely as qualified men to be hired for university positions."

Smith holds the sex discrimination he and countless other male academics must endure is unfair, unjust, and unconstitutional. Whether he can get so much as a hearing in court for this viewpoint is doubtful: On March 6, a sessions judge rejected his latest action against the New Brunswick Human Rights Commission on a technicality.

The next hearing in this epic legal struggle is scheduled before the New Brunswick Court of Appeal on June 18. What happens then could have a critical impact on both the careers of thousands of young male academics and the ability of all Canadians to call human rights commissions to account under the charter.


Write Rory at The London Free Press, P.O. Box 2280, London, Ont. N6A 4G1 or fax 519-667-4528 or E-mail.-->
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