Professional Status and the Freedom to Contract: Towards a Common Law Duty of Non-Discrimination
54 Pages Posted: 10 Jul 2001
Situating human rights in private law, this paper argues that Canadian cases allowing private businesses that provide goods and services to the general public to refuse service because of customers' group-based characteristics are inconsistent with precedent and 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. 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