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Exploring the "Aspirations and Practice" of Law As a Tool in Struggles Against Social Inequalities Karen Schucher

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Exploring the Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 10-30-2014 Coercing Justice? Exploring the "Aspirations and Practice" of Law as a Tool in Struggles Against Social Inequalities Karen Schucher Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/phd Part of the Civil Rights and Discrimination Commons, and the Human Rights Law Commons Recommended Citation Schucher, Karen, "Coercing Justice? Exploring the "Aspirations and Practice" of Law as a Tool in Struggles Against Social Inequalities" (2014). PhD Dissertations. 9. http://digitalcommons.osgoode.yorku.ca/phd/9 This Dissertation is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. COERCING JUSTICE? EXPLORING THE “ASPIRATIONS AND PRACTICE” OF LAW AS A TOOL IN STRUGGLES AGAINST SOCIAL INEQUALITIES Karen Schucher A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO October 2014 © Karen Schucher, 2014 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. ii Acknowledgements My supervisor, Professor Mary Jane Mossman, is the sine qua non of my ability to produce this dissertation. I benefitted in countless ways from her sharp intellectual guidance, meticulous feedback, and unwavering support throughout this project. I am honoured and privileged to have done this work under Professor Mossman’s inspirational coaching. I am grateful to Professor Sara Slinn and Professor Eric Tucker for their time and contributions as members of my Supervisory Committee. Their insights at various points along the way helped to shape my thinking and the project. I am also grateful to my Defence Committee - Professor Carmela Patria, Professor Craig Heron, Professor Bruce Ryder, Professor Sara Slinn, Professor Eric Tucker, and Professor Mary Jane Mossman - for their engaging questions and thought-provoking conversation. My future work will be enriched by their wise perspectives. I thank the Social Sciences and Humanities Council for their financial support through the awarding of a Doctoral Fellowship. I thank the Graduate Programme Office at Osgoode Hall Law School for their administrative support in helping me navigate the many challenges that interrupted and delayed my work. For assistance with my archival research, I thank the librarians and staff at Library and Archives Canada; Janice Rosen, Archives Director of the Canadian Jewish Congress National Charities Committee Archives; and Donna Bernando-Ceriz, Archivist, Melissa Cava, Archivist and former Director Ellen Scheinberg of the Ontario Jewish archives. My dear friends Shelley Solomon and Fab Mosconi provided me with a home away from home during my research trips to the Canadian Jewish Congress National Charities Committee Archives in Montreal. They shared good food, comfortable shelter, and good company, and were always a receptive audience at the end of the day, happy to share in my discoveries. iii I would not have been able to complete this journey without the patience and grounding provided by my spouse, David Muir and our son, Nathan Gilbert Muir Schucher, who plugged many of the holes created by the time I needed for this work. The PhD path involves sacrifices of many kinds, and much time away from the people you love. No one knows this better than those who share their lives with you. I dedicate this dissertation to the memory of the women I knew as my bubbies, Rose Schucher and Jean Diner, and to my zaydes Nathan Schucher and Jerry Segall, who provided important role models for my aspirations to live my life as a responsible and caring citizen. iv TABLE OF CONTENTS Abstract ………………………………………………………………………………..….ii Acknowledgements…………………………………………………...………………….iii Table of Contents ………...………………………………………………………….........v Preface……………………………………………………………………………………vi Introduction……………………………………………………………………………….1 1 Law: Coercion, Justice and Social Power ..………………………..………………….4 2 Agency through Law: Establishing, Using and Enforcing Legislated Norms ……...11 Agency through Establishing Legal Norms, Legislated and Common Law ……....12 Agency through Using and Enforcing Legislated Norms………………………..…14 Enforcing Legal Norms, Dispute Resolution, and Law in Context …...……….…..18 3 Responsibility at Law: Fault and Remedy ……………………..…………………….20 Responsibility and Consequences …………………………………………..……..22 Responsibility, Fault and Formal Legal Process …………………….………..…...24 Responsibility, Remedy and Informal Legal Process ………………….………..…27 Responsibility and Responsive Regulation ………………………………………..29 4 Anti-Discrimination Law as a Site of Inquiry …………………….………………….31 5 Dissertation Methodology and Overview …………………..………………………..34 Chapter One: Historical Roots of Ontario’s Human Rights Code and Human Rights Commission Model: Fair Practices Legislation and Enforcement, 1946- 1961 Introduction to Chapter One ……………………….……………………………………39 Part I: The Quest for Fair Practices Legislation ……..………………………………….40 1 From Common Law to Legislation ………………….………………………………41 2 Social Advocacy for Fair Practices Legislation …………………...…………………48 Key Players in the Ontario Advocacy for Fair Practices Legislation ………..….....50 Social Solidarity and Universalism ………………….……………………………..53 3 Discrimination as a Social Issue Requiring Response ………………….……………58 4 Why Law? …………………..………………………………………………………..71 The Normative Role of Law ……………………………………………………....74 Public Responsibility to Address Discrimination …………………………..……. 78 The Coercive Power of Law ………………………………….………………..…86 5 The Fair Practices Statutes ………………………………..……………………….....98 Part II: Fair Practices Enforcement ………..………………………..………………….101 1 Aspiration Meets Practice in State Enforcement of Fair Practices Legislation …….104 The United States Experience with Commission Enforcement ……………...…...105 The Ontario Experience With Commission Enforcement …………….………….108 2 Fair Practices Advocates’ and Citizens’ Enforcement Role and Responsibilities .…126 Conclusion to Chapter One ………….……………………………………………...…131 v Chapter Two: Social Relations, Legal Norms and Legal Process: Ontario’s Human Rights Code, Human Rights Commission and Bell v. McKay, 1956-1972 Introduction to Chapter Two …………………………………………………………...136 Part I: Achieving Legislative Protection for Rental Housing……………...…….……..139 1 Forbes v. Shields, 1956: Early Interpretation of Fair Accommodation and Rental Housing ……..………………..…………………………………………………….139 2 Legislative Amendment to the Fair Practices Accommodation Act ………….……145 3 Human Rights Code Protection Against Discrimination in Rental Housing …….…148 Part II: Human Rights Code Enforcement Tensions – Civil or Criminal, Conciliation or Adjudication, Public or Private………………………………………………….150 1 Overview of Code Enforcement ……………………………………………………151 2 Conciliation: The Velvet Glove …………………………………………………...154 3 Board of Inquiry Adjudication: The Iron Fist or Hand ………………………..…..159 4 Civil and Criminal Dimensions …………………...……………………………….163 Part III: Board of Inquiry Decisions on “Self-Contained
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