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Using Statutory Measures to Redress Racism
Advocates’ Quarterly (2001)
  • Benjamin L Berger
The problem of crafting an effective legal means of redressing racism in a civil context has been a source of heated debate since the Ontario Court of Appeal's 1979 decision in Bhadauria,which recognized a common law tort of discrimination. Reversing the Court of Appeal's decision, the Supreme Court of Canada confined legal actions for discrimination to the ambit of human rights legislation, where it remains today, with the unnoticed but promising exception of the CRPA. Nevertheless, the debate surrounding the appropriateness of using torts as a means of addressing discrimination has continued. This question engages differing understandings of the philosophical foundations and purposes of tort law. The notion of a tort of discrimination also raises questions about the efficacy of human rights systems at remedying racism and the possibility of resurrecting the common law action from its early grave. Having canvassed both the theoretical aspects of the debate and the utility of other recourses, this article will suggest that the most theoretically satisfactory and practically effective means of addressing racism in the courts is through a legislated tort of discrimination. The CRPA offers just such an option and should be actively engaged by litigators with clients who have been the victims of racial discrimination.
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Citation Information
Benjamin L Berger. "Using Statutory Measures to Redress Racism" Advocates’ Quarterly Vol. 24 Iss. 4 (2001) p. 449 - 466
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