Abella on the legacy of her report on equality

Justice Rosalie Abella provided candid reflections on her work as Royal commissioner on employment equity when she delivered the sixth Koskie Minsky University Lecture in Labour Law on Oct. 30 at the University of Western Ontario.

Abella treated her audience to a frank, humble, and very often humourous account of her work as a one-woman Royal commission.

“When I look back on the Royal commission 25 years later, what I remember most about that whole experience is how much I didn’t know and how much I learned just by listening,” she said.

“The faces that I saw 25 years ago all across Canada are still the faces that I see when I judge. For that experience alone I think I’m a completely changed person.”

In the early 1980s, the government was dogged by advocate groups calling for affirmative action efforts.

Abella pointed out that by that time, the United States had affirmative action for 20 years. In Canada, francophones formed a quarter of the country’s public servants as a result of a similar initiative.

As a result, the federal government appointed “the little commission that could.”

Abella received $1 million to assess workplace issues that affected over half of the country’s population. To put it in perspective, the same government appointed a seven-person commission with a $4-million budget to study baby seals.

With these modest resources and accompanied by her former secretary, Abella met with 1,000 people across Canada over six weeks.

They included women, Aboriginal Peoples, visible minorities, and people with disabilities, as well as representatives from businesses and the labour movement.

Drawing on her experience as head of the Ontario Human Rights Commission, she decided to conduct a series of two-hour interviews rather than hold public hearings.

“Everybody [during Human Rights Commission hearings] was talking to the camera and we were getting statements. We weren’t getting frank discussion. I decided — since nobody told me I couldn’t — that I would have conversations instead of public hearings.”

The results of the inquiry were surprisingly consistent across the country, revealing systematic exclusion of the four groups.

“I heard the same thing from every group everywhere I was in Canada. It was remarkable.

“I quickly moved from the mandate that this was about 11 Crown corporations. This was about the workplace in Canada, period. And so spent 25 pages [of the report] on Crown corporations and 275 on everyone else.”

While her 300-page report displays the work of a brilliant legal mind, Abella’s lecture revealed deeply personal effects of the interviews that led up to its publication.

“I had no idea about so much and I guess because I’ve been a judge, I learned how to keep my face straight and not show my surprise at how moved I was, how touched I was, how sad I was by how difficult it was for these people.”

She rejected the American affirmative action model that treated everyone the same regardless of individual differences. Instead, she devised employment equity —  a novel approach rooted in Canadian history.

“We’re not opposed to the individual right model, which is the basis of civil liberties, but our constitutional bargain was about two groups — the French and the English — who were coming together as equals.”

Abella said her work was received “like a bad movie”. The report was colourfully described by press and public as “awful,” “not worth the paper it’s written on,” and “Gestapo-like.”

A year later, however, Canada had its first employment equity act that implemented many of the report’s recommendations.

Before the end of the decade, Abella had the satisfaction of reading the Supreme Court decision in Andrews v. Law Society of British Columbia, a case that resonated with her on a personal level.

“My father had been a lawyer at the Jagiellonian University [in Krakow, Poland] and when we came to Canada in 1950, he wasn’t allowed to practise because he wasn’t a citizen.

“The first equality case was a case about a man in B.C. who wasn’t allowed to practise law because he wasn’t a citizen and in striking down the citizenship requirement the [Supreme Court] used my words. It was one of those circles of life that are just astonishing.”

The Abella report gained influence around the world. In 1989, Abella travelled to Belfast where she acquired unexpected notoriety courtesy of her bodyguards.

“[They’ve] been telling all the bodyguards in Belfast that we picked up a Canadian judge to give a lecture and the first thing the judge wanted to do was pick up pantyhose. We never said it was a woman judge.”

As Abella repeated throughout the lecture, the most important part of the report’s legacy is the need to be open-minded and listen to others.

“Each of us is limited by what we don’t know and by what the others don’t know,” she concluded. “With knowledge comes understanding. With understanding comes wisdom and with wisdom comes justice and to have justice we must never forget how the world looks to those who are vulnerable. I will never forget the people who taught me to see the world through their eyes.”

Kamila Pizon is a law student at the University of Western Ontario and was fortunate enough to attend the lecture as a student volunteer.

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