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18 Canadian Lab. & Emp. L.J. 291 (2014-2015)
The Right to Sue as Access to Justice: Discrimination in Employment before the Courts in Canada and California

handle is hein.journals/canlemj18 and id is 297 raw text is: The Right To Sue as Access to Justice: Discrimination in Employment before the Courts in Canada and California Sheila Osborne-Brown* This paper provides a comparative analysis of the Canadian and U.S. approaches to the adjudication of discrimination claims arising from employ- ment. The author presents an overview of the main structural elements of the U.S. system (focusing on the state of California) as compared to the Canadian system, having regard to causes of action, forums, the type and extent of rem- edies, costs awards, and participants in the process. She then considers the impact of those contrasting structural elements on a complainant's ability to access a court process, rather than an administrative process alone, and on the scope of individual monetary remedies that may be available in addition to systemic ones. Weighing the advantages and disadvantages of the Canadian and U.S. approaches, the author asks whether the system in Canada, with its pronounced public character, could not coexist with a more private sys- tem in which claims could be pursued in court, in a way that would benefit both individual complainants and society as a whole. At the same time, the author suggests that enhancing the quantum of individual remedies, whether in an administrative forum or in court, could well prove to be an effective tool for encouraging complainants to come forward and to enable them to secure effective legal representation in prosecuting their complaints. 1. INTRODUCTION My interest in the subject-matter of this paper was born out of personal experience. I have practised employment law in both Canada and the United States (the State of California in particular), and I * Counsel, Canadian Human Rights Commission, Ottawa. This paper is dedicated to the memory of Denise Gilliland, a remarkable woman who ran her own barber shop in Osgoode, Ontario for 31 years. She was devoted to her family, friends and customers. Denise passed away on October 31, 2012, and is dearly missed. Although the views expressed in this paper are informed by my work, the views expressed herein are mine alone and do not necessarily coincide with the position of the Canadian Human Rights Commission. I wish to thank colleagues at the Commission who commented on an earlier version of this paper, and Professor Jennifer Bond for her invaluable help in the early stages of this endeavour, I take responsibility for any inaccuracies, and would be happy to receive comments at sosbornebrown@yahoo.com.

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