Date of Award

10-30-2014

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Keywords

Law, History, Canadian history, Human rights, Sociology of law, Legal theory, Legal history, Fair practices, Human rights commission, Legal process, Access to justice, Discrimination, Human rights tribunal

First Advisor

Mossman, Mary Jane

Abstract

This dissertation examines the role of law as a tool in struggles against social inequalities, by tracing the history of Ontario’s human rights legislation and enforcement from the enactment of fair practices statutes in the 1950s through the restructuring of the enforcement regime in 2006. Ontario was the first Canadian province to pass anti-discrimination legislation and to establish a human rights commission enforcement process. This legislation and the commission enforcement process were the models for all other Canadian jurisdictions.

The dissertation approaches the role of law through the framework of tensions between the “aspirations” and the “practices” of law. On the one hand, law holds out the promise of enhancing citizen agency and imposing responsibility for conduct by promoting access to justice through the power of legal norms, institutions, and enforcement and other processes. On the other hand, efforts to fulfill this promise raise questions about the content of legal norms, the operation of legal institutions, the practice of legal processes, and the relationship between law and social power.

The historical record examined in the dissertation shows human rights advocates successfully engaging the power of the state to enact anti-discrimination legal norms, but then facing new challenges in their efforts to engage the power of the state to enforce these norms. Although access to the coercive power of law was a consistent theme in the advocacy for anti-discrimination legislation and enforcement, in practice there has been relatively little access to this power. Both the government agency model, and the tribunal model which replaced it, have emphasized informal, non-public and voluntary resolution over formal, public, more coercive adjudication. The emphasis on private, voluntary resolution of anti-discrimination claims may increase the potential for private social outcomes, however, these social outcomes may also reflect rather than redress imbalances in social power relations. The emphasis on private, voluntary resolution also has the potential to limit the public development of anti-discrimination legal norms. Thus, while anti-discrimination legislated norms have become important tools for citizen agency, this agency has arguably been most effective outside of the formal legal enforcement processes.

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