The public interest in addressing systemic discrimination in British Columbia : a comparison of human rights enforcement models


University of British Columbia

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Master of Laws - LLM




Systemic discrimination has been a central topic in human rights in Canada ever since the Royal Commission, chaired by Judge Rosalie Abella (as she was then), brought it to the forefront of the human rights agenda over two decades ago. Since that time human rights commissions have struggled with the dilemma of how to effectively address systemic discrimination. Most recently, the issue of systemic discrimination played a significant role in British Columbia, in the introduction of the first direct access enforcement process in Canada. This thesis is intended to stimulate discussion about the public interest in effectively addressing systemic discrimination, particularly in British Columbia. It assesses the merits of two models of enforcement. The first is the Commission Model, in which a human rights commission administers and enforces the claims process, and promotes human rights through public education and preventive initiatives. The second is the Direct Access Model, in which an adjudicative body is solely responsible for the administration and adjudication of all stages of human rights claims. Additionally, an analysis/critique is provided of areas that, while not directly attributable to differences between the two Models, are nevertheless critical for effectively addressing systemic discrimination. The analytical methods relied on include interviews with professionals whose work involves human rights, and an extensive literature and case review. The conclusion of this thesis is that neither Model by its self sufficiently addresses systemic discrimination. While the commission process appears to offer strengths absent in direct access, specifically in public interest related provisions, the implementation of these provisions results in theoretical rather than actual strengths. The major strength in the direct access model is the autonomy provided to parties over the course of their claims. However, the absence of provisions for addressing the public interest in systemic claims, reinforces the privatized nature of the direct access process, and severely impedes its effectiveness. It is only through the synergy of the two Models, augmented and supplemented by proactive non-enforcement initiatives that systemic discrimination can be effectively addressed. Recommendations are made for addressing identified gaps, aimed at the enforcement process in British Columbia.

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