Professional Status and the Freedom to Contract: Towards a Common Law Duty of Non-Discrimination
54 Pages Posted: 10 Jul 2001 Last revised: 17 Mar 2020
Date Written: 2001
This paper suggests that Canadian common law doctrine, according to which businesses providing goods and services to the public at large are allowed to refuse service because of a customer’s group-based characteristics such as race, is inconsistent with previous case law as well as with the underlying reason-based structure of the common law. After suggesting that the common law has not been fully displaced by human rights legislation, the paper demonstrates that the common law contains three concrete articulations of a duty to provide equal service. It argues that at the core of the rationale that best fits these bodies of case law is a status-based demand placed on those interacting in their capacity as members of an impersonal profession to refrain from taking into account any personal or group-based characteristics beyond those relevant to the provision of goods and services around which the profession is organized.
Keywords: Private Law, Human Rights, Discrimination, Equality, Freedom of Contract, Canada (Canadian), Common Law, Status, Profession, Kant, Hegel, Civil Society, Goods and services, Common Callings, Public Accommodations
JEL Classification: k00. k10, k19, k20, k29, k31, k33, k42
Suggested Citation: Suggested Citation