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.<p>
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.<p>
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.<p>
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.<p>
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.
| Identifer | oai:union.ndltd.org:USASK/oai:usask.ca:etd-07102007-095431 |
| Date | 23 July 2007 |
| Creators | Spencer, Linda Charmaine |
| Contributors | Cooper-Stephenson, Ken |
| Publisher | University of Saskatchewan |
| Source Sets | University of Saskatchewan Library |
| Language | English |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://library.usask.ca/theses/available/etd-07102007-095431/ |
| Rights | unrestricted, I hereby certify that, if appropriate, I have obtained and attached hereto a written permission statement from the owner(s) of each third party copyrighted matter to be included in my thesis, dissertation, or project report, allowing distribution as specified below. I certify that the version I submitted is the same as that approved by my advisory committee. I hereby grant to University of Saskatchewan or its agents the non-exclusive license to archive and make accessible, under the conditions specified below, my thesis, dissertation, or project report in whole or in part in all forms of media, now or hereafter known. I retain all other ownership rights to the copyright of the thesis, dissertation or project report. I also retain the right to use in future works (such as articles or books) all or part of this thesis, dissertation, or project report. |
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