The use of tort law in the protection of human rights : an alternative to human rights boards?
It is an integral part of rights protection that "adequate" remedies exist. This thesis examines the present functioning of human rights legislations in Canada and articulates fundamental problems with the current Canadian regimes in the enforcement of rights against private actors. The possibility of using tort action as an alternative in the protection of human rights in Canada is then discussed, with particular attention given to the potential for increased damage awards and for wider grounds of prohibition of discriminatory practices. The thesis revisits the Supreme Court of Canada decision in Bhadauria v. Seneca College and anaylzes the basis on which human rights legislation was seen as a creating barrier to a collateral tort action. In contrast with the decision in Bhadauria , the thesis concludes that the present state of tort law is capable of handling this new category of compensable damage. It is further suggested that the realities of human rights protection require reconsideration of alternatives to the present schemes in order to give effect to "adequate" remedies. Drawing on the philosophy of A.J.M. Milne, the thesis addresses the role of judiciary as actively protecting the rights rather than simply enforcing what already exists. Referring specifically to a nominate tort of discrimination, the thesis provides a framework for the consideration of such a tort, relying on a standard of care equivalent to "negligence" in which the private actor has failed to live up to a universal or "community" standard of reasonable behaviour. In part, because any group can narrowly focus and prioritize issues and concerns that are of primary importance to them as a group, this "community" can not be a localized body. A well functioning "community", instead, is characterized as utilizing and applying universal standards and principles such the principle to fair treatment. This principle entails that there be a "sufficient connection" between the ground of distinction and and the treatment involved. These become the standard by which the private actor is to be judged.
Seneca College v. Bhadauria, Canada - human rights legislation, tort law
Master of Laws (LL.M.)
College of Law
College of Law