Ali_s Human Rights Law CAN - Winter 2019

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Human Rights Law: Winter 2019 Human Rights Law: Winter 2019 ..................................................................................................................................................................... 1 CLASS 1: Introduction to Human Rights Law ................................................................................................................................................ 3 CASES & CLASS DISCUSSION ...................................................................................................................................................................................... 4 Dembour’s Four Schools of Thought ..................................................................................................................................................................... 4 CLASS 2: International Human Rights Law – Treaties, Declarations, etc. ........................................................................................................ 4 General Framework for Applying International Human Rights Law .......................................................................................................................... 4 Legal Status of International Human Rights Instruments .......................................................................................................................................... 5 Optional Protocols: Canadian Party-ship ................................................................................................................................................................... 5 Optional Protocol to ICCPR .................................................................................................................................................................................... 5 Optional Protocol to CEDAW ................................................................................................................................................................................. 5 Key Provisions of International Human Rights Law ................................................................................................................................................... 6 CASE LAW: McIvor v Canada , UNHRC 2019 – ICCPR Arts 2, 3, 26, 27 ....................................................................................................................... 7 CLASS 3: International HRL – Case Law, Use of IHRL in Canadian Courts & Tribunals ....................................................................................... 7 CASE LAW: International HRL in Canadian Courts & Tribunals .................................................................................................................................. 7 Kell v Canada , Communication No 19/208 - CEDAW ............................................................................................................................................ 7 Baker v Canada , 1999 SCC paras 1-7, 69-71 – CONVENTION ON THE RIGHTS OF THE CHILD .............................................................................. 8 Suresh v Canada , 2002 SCC 1 paras 1-46, 59-75 – CUSTOMARY INTERNATIONAL LAW ...................................................................................... 8 Saskatchewan Federation of Labour v Saskatchewan , 2015 SCC 4 ...................................................................................................................... 8 CLASS 4: Jurisdictional Issues ...................................................................................................................................................................... 9 Statutory Framework ................................................................................................................................................................................................ . 9 Alberta Human Rights Act – preamble, ss. 1, 12, 20-22, 31 .................................................................................................................................. 9 Canadian Human Rights Act – ss. 2, 39-42, 63, 64, 66 .......................................................................................................................................... 9 CLASS NOTES: Jurisdiction Over Human Rights ....................................................................................................................................................... 10 The Courts’ Jurisdiction over Human Rights ....................................................................................................................................................... 10 Tribunals’ Jurisdiction over Human Rights .......................................................................................................................................................... 10 CASE LAW: Jurisdiction ............................................................................................................................................................................................. 11 Seneca College v Bhaudauria , 1981 SCC .............................................................................................................................................................. 11 Tranchemontagne v Ontario , 2006 SCC .............................................................................................................................................................. 11 Webber Academy Foundation v Alberta (HRC) , 2018 ABCA 207 ......................................................................................................................... 11 CLASS 5: Field Trip to AHRC ....................................................................................................................................................................... 12 Field trip to AHRC! ....................................................................................................................................................................................................

12 CLASS 6: The Test for Discrimination ......................................................................................................................................................... 12 Statutory Framework ............................................................................................................................................................................................... 12 The Alberta Human Rights Act ............................................................................................................................................................................ 12 General Approach to Human Rights Claims: The Test for Discrimination ............................................................................................................... 12 TEST FOR DISCRIMINATION: ................................................................................................................................................................................ 12 CASE LAW: The Test for Discrimination ................................................................................................................................................................... 13 Ontario Human Rights Commission and O’Malley v Simpson-Sears, 1985 SCC .................................................................................................. 13 The Test for Discrimination Under s. 15 of the Charter ...................................................................................................................................... 14 Moore v British Columbia (Education) , 2012 SCC ................................................................................................................................................ 14 Peel Law Association v Pieters , 2013 ONCA ........................................................................................................................................................ 15 Quebec v Bombardier Inc , 2015 SCC 39 ............................................................................................................................................................... 15 Stewart v Elk Valley Coal Corp , 2017 SCC 30 ....................................................................................................................................................... 16 Class 7: Defending Human Rights Claims .................................................................................................................................................... 16 Statutory Framework ............................................................................................................................................................................................... 16 The Canadian Human Rights Act ......................................................................................................................................................................... 16 The Alberta Human Rights Act ............................................................................................................................................................................ 17 CASE LAW: Defending Human Rights Claims ........................................................................................................................................................... 17 Meiorin – BC v BCGSEU , 1999 SCC ....................................................................................................................................................................... 17 GRISMER – BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights) , 1999 SCC ......................................................................... 18 Central Okanagan School District No 23 v Renaud , 1992 SCC ............................................................................................................................ 18 Hydro-Quebec v Syndicat des employees des techniques professionnelles d’Hydro Quebec, section locale 2000, 2008 SCC 43 ....................... 19 Exercise: Applying BFOR to Stewart .................................................................................................................................................................... 20 The Ameliorative Program Defence .................................................................................................................................................................... 20 Class 8: Discrimination in Providing Services .............................................................................................................................................. 20 Statutory Framework ............................................................................................................................................................................................... 21 1 Alberta Human Rights Act ................................................................................................................................................................................... 21 Canadian Human Rights Act ................................................................................................................................................................................ 22 CASE LAW: Discrimination in Providing Services ..................................................................................................................................................... 22 University of BC v Berg , 1999 SCC ........................................................................................................................................................................ 22 Revisiting Webber Academy ................................................................................................................................................................................ 23 Gwinner v Alberta (Human Resources and Employment) , 2002 ABQB 685 / 2004 ABCA 210 ............................................................................ 23 Andrews/Matson – Canada (CHRC) v Canada (AG) , 2018 SCC 31 ....................................................................................................................... 24 Other Cases on Services ...................................................................................................................................................................................... 24

Class 9: Discrimination in Employment & Retaliation ................................................................................................................................. 25 Statutory Framework ............................................................................................................................................................................................... 25 Alberta Human Rights Act ................................................................................................................................................................................... 25 Canadian Human Rights Act ................................................................................................................................................................................ 27 CASE LAW: Discrimination in Employment and Retaliation .................................................................................................................................... 28 Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission) , 2011 ABCA 3 .............................................................. 28 McCormick v Fasken Martineau DuMoulin LLP , 2014 SCC 39 ............................................................................................................................. 29 BC HRT v Schrenk , 2017 SCC 62 ........................................................................................................................................................................... 29 BC HRT v Schrenk, 2017 SCC 62 ...................................................................................................................................................................... 29 Robichaud v Canada (Treasury Board) , 1987 SCC ............................................................................................................................................... 30 Robichaud v Canada (Treasury Board), 1987 SCC ........................................................................................................................................... 30 Who is an Employer? ........................................................................................................................................................................................... 30 Walsh v Mobil Oil Canada , 2008 ABCA 268 ......................................................................................................................................................... 31 Walsh v Mobil Oil Canada, 2008 ABCA ........................................................................................................................................................... 31 Class 10A: Sex and Gender ........................................................................................................................................................................ 31 Statutory Framework ............................................................................................................................................................................................... 31 Canadian Human Rights Act ................................................................................................................................................................................ 31 CASES: Sex and Gender ............................................................................................................................................................................................ 32 Action Travail - CN v Canada (CHRC) , 1987 SCC .................................................................................................................................................. 32 Brooks v Canada Safeway Ltd , 1989 SCC ............................................................................................................................................................. 32 Janzen v Platy Enterprizes Ltd , 1989 SCC ............................................................................................................................................................. 33 Friedmann v MacGarvie , 2012 BCCA 445 ............................................................................................................................................................ 33 Class 10B: Sexual Orientation ................................................................................................................................................................... 34 CASE LAW: Sexual Orientation ................................................................................................................................................................................. 34 School District No 44 (North Vancouver) v Jubran , 2005 BCCA 2001 .................................................................................................................. 34 Ontario (HRC) v Christian Horizons , 2010 ONSC 2105 ......................................................................................................................................... 35 Class 11A: Marital/Family Status ............................................................................................................................................................... 36 Class Notes ......................................................................................................................................................................................................... ...... 36 CASE LAW: Marital and Family Status ...................................................................................................................................................................... 36 B v Ontario (HRC) , 2002 SCC 66 ........................................................................................................................................................................... 36 Canada (AG) v Johnstone , 2014 FCA 110 ............................................................................................................................................................. 37 Tanner v Gambler First Nation , 2015 CHRT 19 at paras 1-16, 21-39. ................................................................................................................. 37 Class 11B: Source of Income and Social Condition ...................................................................................................................................... 37 Statutory Framework ............................................................................................................................................................................................... 38 Class

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Notes ......................................................................................................................................................................................................... ...... 38 CASE LAW: Source of Income and Social Condition ................................................................................................................................................. 38 Miller – 409205 Alberta Ltd v Alberta (Human Rights & Citizenship Commission) , 2002 ABQB 681 .................................................................. 38 NWT (WCB) v Mercer , 2014 NWTCA 1 ................................................................................................................................................................ 39 Radek v Henderson Development (Canada) Ltd , 2005 BCHRT 302 ..................................................................................................................... 39 Envirocon Environmental Services, ULC v Suen , 2019 BCCA 46 ........................................................................................................................... 40 Class 12: Disability and Gender Identity ..................................................................................................................................................... 40 Statutory Framework ............................................................................................................................................................................................... 40 Class Notes ......................................................................................................................................................................................................... ...... 40 CASE LAW: Disability and Gender Identity ............................................................................................................................................................... 41 Quebec v Montreal , 2000 SCC 27 ........................................................................................................................................................................ 41 Council of Canadians with Disabilities v VIA Rail Canada Inc , 2007 SCC 15 ........................................................................................................ 41 Moore v BC (Education) , 2012 SCC 61 ................................................................................................................................................................. 42 Class 13: Guest Lecture – Residential Tenancies and Discrimination ............................................................................................................ 42 Class 14: Race, Colour, Ancestry, Origin, Religion ....................................................................................................................................... 43 Readings ................................................................................................................................................................................................... ................ 43 Statutory Framework ............................................................................................................................................................................................... 43 Alberta Human Rights Act ................................................................................................................................................................................... 43 2 Canadian Human Rights Act ................................................................................................................................................................................ 43 Class Notes: Statistics ............................................................................................................................................................................................... 44 CASE LAW: Race, Colour, Ancestry, Origin, Religion ................................................................................................................................................ 44 Peel Law Association v Pieters , 2013 ONCA 396 ................................................................................................................................................. 44 Quebec v Bombardier , 2015 SCC 39 .................................................................................................................................................................... 44 Simpson v Oil City Hospitality Inc , 2012 AHRC 8 .................................................................................................................................................. 45 Brothers v Black Educators’ Association , 2013 CanLII 92697 (NS HRC) ............................................................................................................... 45 Tanner v Gambler First Nation , 2015 CHRT 19 .................................................................................................................................................... 46 Class 15: Human Rights, Indigenous Peoples and Reconciliation ................................................................................................................. 46 Readings ................................................................................................................................................................................................... ................ 46 Statutory Framework ............................................................................................................................................................................................... 47 Alberta Human Rights Act ................................................................................................................................................................................... 47 Canadian Human Rights Act ................................................................................................................................................................................ 47

International Protections ..................................................................................................................................................................................... 47 READINGS: THEORY .................................................................................................................................................................................................. 48 Mary-Ellen Turpel: “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” ...................................... 48 Indigenous Law Research Unit Case Note: Human Rights in Indigenous (Gitxsan) Law ..................................................................................... 48 CASE NOTES: Human Rights, Indigenous Peoples and Reconciliation ..................................................................................................................... 49 Tanner v Gambler First Nation , 2015 CHRT 19 paras 84-106 .............................................................................................................................. 49 First Nations Child and Family Caring Society of Canada et al v AG of Canada (for the Minister of Indian and Northern Affairs Canada) , 2016 CHRT 2 and 2018 CHRT 4 ..................................................................................................................................................................................... 50 Key Principles Explored in Caring Society ............................................................................................................................................................ 50 Class 16: Areas of Discrimination – Employment, Drug and Alcohol Testing, Other Issues ............................................................................. 51 Readings ................................................................................................................................................................................................... ................ 51 CASE LAW: Employment, Drug and Alcohol Testing, Other Issues .......................................................................................................................... 51 Alberta (Human Rights and Citizenship Commission) v Kellogg Brown & Root (Canada) Company , 2007 ABCA 426 ....................................... 51 Stewart v Elk Valley Coal Corporation , paras 48-57, 124-145 ............................................................................................................................. 51 Communications, Energy and Paperworkers Union of Canada Local 30 v Irving Pulp & Paper Ltd , 2013 SCC 34 – headnote .......................... 52 Chow v Mobil Oil Canada , 1999 ABQB 1026 ....................................................................................................................................................... 52 Class 17: Areas of Discrimination – Notices and Publications ...................................................................................................................... 53 Readings ................................................................................................................................................................................................... ................ 53 Statutory Framework ............................................................................................................................................................................................... 53 Alberta Human Rights Act s. 3 ............................................................................................................................................................................. 53 Canadian Human Rights Act s. 12 ........................................................................................................................................................................ 54 CLASS NOTES: International and Domestic Law ...................................................................................................................................................... 54 CASE LAW: Notices and Publications ....................................................................................................................................................................... 54 Elmasry and Habib v Roger’s Publishing and MacQueen (No 4) , 2008 BCHRT paras 1-27, 54-87, 138-160 ....................................................... 54 Lund v Boissoin , 2012 ABCA 300 .......................................................................................................................................................................... 55 Saskatchewan v Whatcott , 2013 SCC 11 ............................................................................................................................................................. 55 Class 18: Human Rights Remedies ............................................................................................................................................................. 56 Readings ................................................................................................................................................................................................... ................ 56 Statutory Framework ............................................................................................................................................................................................... 56 Alberta Human Rights Act ss. 32- 34 .................................................................................................................................................................... 56 Canadian Human Rights Act ss. 53-57 ................................................................................................................................................................. 57 Class Notes: Overview of Remedies Granted in Case Law ....................................................................................................................................... 57 CASE LAW: Remedies in Human Rights Law ............................................................................................................................................................ 58 Walsh v Mobil Oil Canada , 2013 ABCA 238 at paras 1-67, 97-104 ..................................................................................................................... 58 NS HRC BOI – Halifax Association of Black Firefighters and Halifax Regional Municipality (SETTLEMENT) ....................................................... 59 ( Mowatt ) Canadian Human Rights Commission v AG of Canada et al , 2011

SCC 53 ......................................................................................... 59 Moore v BC (Education) , 2012 BSCC 61 at paras 55- 71. ...................................................................................................................................... 60 CLASS 1: Introduction to Human Rights Law Reading s: 1. Marie-Benedicte Dembour, “What Are Human Rights? Four Schools of Thought” (2010) – at 1-11, 19-20. 2. Corbett, Canadian Human Rights Law & Commentary at 16-34. 3. Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” at 29-45. 4. Indigenous Law Research Unit Case Not: Human Rights in Indigenous (Gitxsan) Law. 3 CASES & CLASS DISCUSSION Dembour’s Four Schools of Thought Four Schools of Thought: 1. Natural school – rights are natural and exist; 2. Deliberative – rights are based on societal agreement; 3. Protest – rights exist to redress injustice; 4. Discourse – lack of reverence; rights exist because we discuss them. Key Questions: 1. What are the key issues and debates about HR in the readings? Are there other issues/debates? a. Foundation of human rights; b. Realization of human rights; c. How rights are perceived; d. State sovereignty and universal rights. 2. What are some key differences between Indigenous and non-Indigenous perspectives on rights? a. Western human rights are imposed on Indigenous cultures; do not take into account broad variation between Indigenous cultures. 3. Key debates: a. Natural/moral vs. legal rights; b. Universal vs. specific rights; c. Progressive vs. regressive/imperialist basis for rights; d. Negative vs. positive rights; e. Civil and political vs. economic, social and cultural rights; f. Public vs. private obligations – do human rights only impose obligations on the state, or private persons too?

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CLASS 2: International Human Rights Law – Treaties, Declarations, etc. Reading s: 1. Universal Declaration of Human Rights 2. International Covenant on Civil and Political Rights – esp arts 28, 40, 41, 42 3. International Covenant on Civil and Political Rights, Optional Protocol 4. International Covenant on Economic, Social and Cultural Rights – arts 16, 25, 28 5. International Covenant on the Elimination of All Forms of Racial Discrimination 6. Convention on the Elimination of All Forms of Discrimination Against Women 7. Optional Protocol to the Convention on the Elimination of all Forms of Discrimination Against Women 8. Convention on the Rights of the Child 9. Convention on the Rights of Persons with Disabilities 10. American Declaration on the Rights and Duties of Man 11. Declaration on the Rights of Indigenous Peoples 12. Core International Human Rights Instruments and their Monitoring Bodies 13. Canada, National Report 14. McIvor v Canada , Communication No 2020/2010, UN Doc CCPR – here . General Framework for Applying International Human Rights Law International Human Rights Commitments i. To form part of Canadian law, international treaties need national legislative implementation unless they codify norms of customary international law already found in Canadian domestic law ( Caring Society ). ii. However, becoming party to a treaty or covenant means a country is adhering to the contents of it – it’s a declaration that its national legislation will reflect its international commitments ( Caring Society ). iii. As a result, int’l law is relevant in interpreting Canadian domestic HR law scope and content ( Caring Society ), iv. Should look at decisions/recommendations of HR bodies to interpret scope/content of domestic law in light of international law ( Sask Fed Labour ). 4 Legal Status of International Human Rights Instruments Key principle in int’l HR documents: universality and non-discrimination – all human beings are born free and equal in dignity and rights (Universal Declaration). Bindin g? • Conventions are binding in the sense that they’re agreements between Nations – but up to Canadian government to decide whether to ratify a treaty and make it binding law within Canada. • Basically – makes binding obligations between states but not binding within Canada unless incorporated into

Canadian law. • BUT! Courts will look at treaties for the values they create, even if they don’t directly apply or aren’t binding. Conventions/Declarations/Customar y Law 1. Conventions: a. Signed, ratified federally – implemented federally/provincially. b. Binding if incorporated into Canadian law. 2. Declarations: a. Soft law – don’t create binding obligations on or between states. b. Essentially are statements made by UN General Assembly about human rights issue; no signing/ratification process and not formally binding unless seen to constitute customary international law. 3. Customary law: a. Binding – body of legal norms so well-recognized they’re seen as universally binding (e.g. right against torture). b. If you can argue the subject matter of a Declaration is customary law, then norms will be binding on all states. Optional Protocols • Optional protocols allow individuals to argue that their home country has violated their rights under various treaties. Optional Protocols: Canadian Party-ship Canada is a party to the following Optional Protocols: 1. OP to the International Convention on Civil and Political Rights ( ICCPR ) 2. OP to the Covenant on the Elimination of all Discrimination Against Women ( CEDAW ) 3. OP to the Convention on the Rights of Persons with Disabilities; and ( CRPD ) 4. American Declaration/IACHR as OAS member. 5. NOT RATIFIED: a. OP to ICESCR. b. OP to CRC (Communications). Optional Protocol to ICCPR How to use Optional Protocols under ICCPR: 1. The Committee can receive communications from individuals who claim to be a victim of violations by a State Party. 2. The state must be a party to the Optional Protocol. 3. All domestic remedies must be exhausted!!! a. e.g. denial of leave to the SCC. b. EXCEPTION under s. 5(2)(b) of ICCPR – exhaustion of remedies it not the rule where there’s unreasonable delay caused by the process of seeking the remedies. 4. The human rights/discrimination argument must

have been made before the courts – cannot raise for first time in front of the int’l bodies ( Kell ). 5. Circumstances in which the Committee can declare complaints inadmissible: a. Those which are anonymous; b. Can’t be an abuse of process; c. Can’t be incompatible with provisions of ICCPR; d. Complaints must be based on written statements. 6. State respondent has the opportunity to respond and explain its conduct (GC 18). Optional Protocol to CEDAW 5 Under Article 4 of the CEDAW OP, there is a wider door left open for exhaustion of domestic remedies : • “The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.” Other Admissibility Requirements under CEDAW OP: (a) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement; a. i.e. Can’t have applied under other OP already. (b) It is incompatible with the provisions of the Convention; (c) It is manifestly ill-founded or not sufficiently substantiated; (d) It is an abuse of the right to submit a communication; (e) The facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date. a. i.e. Can’t have occurred and ended prior to the State Party entering into the OP. Prohibition Against Retaliation under Article 11: • “A State Party shall take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of communicating with the Committee pursuant to the present Protocol.” Key Provisions of International Human Rights Law Universal Declaration on Human Rights i. Art 2 – sets out principle of equality and non-discrimination in the enjoyment of human rights. ii. Art 7 – proclaims equality before the law and equal protection of the law.

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a. Both engrained in s. 15 of the Charter and in the stated purpose of the CHRA / AHRA . International Bill of Rights i. ICCPR: a. Articles 2 and 23 guarantee equality and prohibit discrimination similar to Universal Declaration. ii. ICESCPR : a. Articles 2(2) and 10 guarantee exercise of protected rights without discrimination and special measures of protection for children and young persons without discrimination for reasons of parentage or other conditions. b. CESCR affirmed that aim of ICESCR was to achieve substantive equality by “paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations.” iii. ICERD: a. Articles 1 and 2 define racial discrimination and direct states to take all necessary measures to ensure adequate development & protection of certain racial groups or individuals belonging to them. Purpose is to ensure full and equal enjoyment of HR and fundamental freedoms including special measures. b. Article 5 highlights rights whose enjoyment must be free of discrimination – incl. right to social services, including public health, medical care and social security. iv. Convention on the Rights of the Child a. Children have the same human rights as adults; need special protection because they are more vulnerable. b. Includes rights of Aboriginal children to enjoy their own culture, profess and practice own religion, language. c. Article 3 – BIOC is primary concern in all actions concerning children. d. Article 9 – A child shall not be separated from their parents against will unless in BIOC. e. Article 12 – where child capable of forming own views, should have right to have them taken into account when it comes to legal matters affecting them. v. UNDRIP a. Article 2 provides that Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination in the exercise of their rights, in particular their indigenous origin or identity. 6 CASE LAW: McIvor v Canada , UNHRC 2019 – ICCPR Arts 2, 3, 26, 27 McIvor v Canada, UNHRC 2019 – ICCPR Arts 2, 3, 26, 27 RATIO i. States are not just responsible for the actions they take, but also the social climate they create (i.e. including actions of individuals caused by that climate). The actions of individuals are attributable to the actions of the government! ii. State parties must take positive steps to ensure other individuals don’t violate rights! iii. Under GC 18 , not every differentiation amounts to

discrimination: a. Must be based on reasonable and objective criteria in pursuit of a legitimate aim under the Covenant. FACTS i. Challenge to the Indian Act status provisions under ICCPR arts 2, 3, 26 and 27. ISSUE/HELD Is the claim admissible? Can the HRC hear the case under the Optional Protocol? i. YES – and the Indian Act breaches articles 2, 3, 26 and 27 of ICCPR. a. Sex discrimination under 3, 26; right to culture under 27. ii. Not based on reasonable and objective criteria or legitimate aim (GC 18). ANALYSIS i. Even though the stigma was sometimes caused by private individuals, the Committee held that the stigma ultimately flowed from the provision in the IA and could be traced back to the Party State. ii. Remedy: a. Take steps to address residual discrimination in Indigenous communities arising from inequality in the IA. b. Ordered to report back in 180 days showing what progress was made on remedies. Background to McIvor : • Lovelace v Canada (1981): o Arose after a number of Indigenous women sought to challenge the pre-’85 version of the Indian Act , which said that any time an Indigenous woman married a non-Indigenous man she lost her status. Didn’t happen to men. o Came to SCC and argued that it was sex-based discrimination under Indian Act – SCC held it was not. • While McIvor was appealing, feds brought forward Bill C-3, the Gender Equity in Indian Registration Act . CLASS 3: International HRL – Case Law, Use of IHRL in Canadian Courts & Tribunals Reading s: • Kell v Canada , Communication No 19/208 – here . • Baker v Canada , 1999 SCC (paras 1-7, 69-71) – here . • Suresh v Canada , 2002 SCC 1 (paras 1, 46, 59-75) – here . • Saskatchewan Federation of Labour v Saskatchewan , 2015 SCC 4 (paras 1-4, 62- 75) – here . CASE LAW: International HRL in Canadian Courts &

Tribunals Kell v Canada , Communication No 19/208 - CEDAW Kell v Canada, Communication No 19/208 - CEDAW RATIO i. CEDAW includes violence against women as sex-based discrimination (GR 35). ii. Where remedies are unreasonably prolonged, a complaint is admissible notwithstanding no appeal to SCC. FACTS i. Kell brought a challenge to the actions of NWTHC, GNWT regarding housing in Rae-Edzo (Behchoko) under CEDAW. She tried to get housing in her community but was turned town; told to apply wither her non-member partner who was abusive. ii. Abusive partner for her name removed from the home; later denied her access. She filed a claim in NWSC alleging assault, battery, sexual assault, etc. including loss of use to her home. Formal attempt to settle was made, but she couldn’t get back in her home. iii. Was forced to initiate a ton of actions which fell through because of ineffective counsel, finally complained to CEDAW even though she didn’t make it to the SCC. ISSUE/HELD Was the complaint admissible? i. Yes – even though she didn’t appeal to SCC, her remedies would have been unreasonably prolonged so she’s admissible. 7 ii. Successful on the merits, remedies: a. Housing commensurate in quality, location, size to one deprived of. b. Monetary compensation for material and moral damages. c. Systemic remedies of recruiting and training more aboriginal women to provide legal aid to women from their communities, incl. domestic violence and property rights. Review legal aid system to ensure Indigenous women who are victims of IPV have effective A2J. ANALYSIS i. Canada tries to argue that she hasn’t exhausted her remedies and didn’t raise discrimination before the domestic courts so can’t raise before the CEDAW committee. ii. CEDAW says: a. Her remedies are unreasonably prolonged, good enough to exhaust remedies without appealing to SCC. b. Raising issue of IPV is sufficient to raise issue of discrimination. Baker v Canada , 1999 SCC paras 1-7, 69-71 – CONVENTION ON THE RIGHTS OF THE CHILD Baker v Canada, 1999 SCC RATIO i. International HRL documents not implemented in Canadian law are still strong indicators of important human rights values and can help interpret Canadian law. ii. CONTEXTUAL APPROACH to stat interpretation and

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JDR, e.g. interpreting scope of Charter rights. FACTS i. Mavis Baker overstayed visa; never received PR status and worked illegally. Had schizophrenia and 4 kids. Ordered deported; she applied for H&C exemption from the requirement to apply for PR residence from outside Canada. Request was denied – notes indicated bias, prejudice, etc. ISSUE/HELD What is the role of IHRL in this decision? i. SCC considered Convention on the Rights of the Child – though not binding law in Canada (ratified but not implemented in Canadian legislation) it’s a strong indicator of importance of children’s interests. ANALYSIS i. As in ratio. Suresh v Canada , 2002 SCC 1 paras 1-46, 59-75 – CUSTOMARY INTERNATIONAL LAW Suresh v Canada, 2002 SCC 1 RATIO i. IHRL helps shape PFJ – takes into account Canada’s obligations and values ( Burns, Suresh ). ii. Must consider provisions of Immigration Act in int’l context ( Pushpanathan ) and PFJ; constitutional meaning is shaped by international law. iii. Peremptory norms ( jus cogens) are customary int’l law based on consensus of int’l community. iv. Identify int’l peremptory norms based on: a. Number of int’l instruments prohibiting it; b. No state has legalized or will admit to its practice; c. Int’l authorities state it’s an establish peremptory norm. FACTS i. Came to Canada from Sri Lanka in 1990; was recognized as Convention refugee in 1991 and applied for landed immigrant status. In 1995, gov’t detained him and started deportation proceedings on grounds he was member of Tamil Tigers (terrorist group). ii. Under s. 53(1) of Immigration Act , gov’t can’t return Convention refugee to country where their life or freedom would be threatened for reasons of race, religion, nationality, membership, etc. ISSUE/HELD What is the role of IHRL in this decision? i. Example of jus cogens /peremptory norms/int’l customary law . ANALYSIS i. Good example of comparative law – another jurisdiction is setting a useful example of how to interpret law in Canada. Never as strong as int’l/customary law since int’l norms might not bind us. ii. The court doesn’t come straight out and say the prohibition on torture/deporting someone to be tortured is jus cogens , just that it “cannot easily be derogated from” – a little bit of wiggle room. Saskatchewan Federation of Labour v Saskatchewan , 2015 SCC 4 Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 RATIO i. Courts seek consistency between Charter interpretation and int’l HR obligations ( Hape, Sask Fed ). ii. The Charter should provide at least as great protection as in int’l HRL ratified by Canada ( Divito, Sask ). 8 FACTS i. At issue was whether a prohibition on designated EEs participating in a strike action for the purpose

of negotiating the terms and conditions of their employment amounted to a substantial interference with their right to a meaningful process of collective bargaining, violating s. 2(d) Charter rights. ISSUE/HELD What is the role of IHRL in this decision? i. Canada’s international HR obligations and int’l HRL support a right to strike under s. 2(d) of the Charter, particularly its ratification of ICESCR and the Charter of the Organization of American States. ANALYSIS i. Demonstrative of how international law that isn’t remotely binding on Canada can be used to inform the international consensus shaping Canadian HRL interpretation. CLASS 4: Jurisdictional Issues Readin gs 1. AHRA ss. 1, 12, 20-22, 31. 2. Administrative Procedures and Jurisdiction Act . 3. Designation of Constitutional Decision - Makers Regulation. 4. CHRA ss. 2, 39-42, 63, 64, 66. 5. Seneca College of Applied Arts and Technology v Bhaudauria , 1989 SCC 6. Tranchemontagne v Ontario (Director, Disability Support Program) , 2006 SCC 14 at paras 1-52, 93-98. 7. Webber Academy Foundation v Alberta (HRC) , 2018 ABCA 207 Statutory Framework Alberta Human Rights Act – preamble, ss. 1, 12, 20-22, 31 Preambl e: • Recognition of inherent dignity and equal/inalienable rights of all persons. • Fundamental principle in Alberta & matter of public policy that all persons are equal in dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation. • Multiculturalism is fundamental principle & public policy. Albertans should have awareness/appreciation of diversity. Primacy Clause (s. 1): • Unless explicitly declared, all AB laws are inoperative to the extent of conflict with the AHRA. Crown is Bound (s.

12): • The AHRA binds the Crown and provincial agencies. Enforceme nt: • Who can make a complaint (s. 20): o Anyone except the Commission or a Commission member who has reasonable grounds for believing that a person has contravened the AHRA. • Limitation period (s. 20(2) (b)): o Complaints must be made within one year of the alleged contravention of the Act. • Settlement (s. 21): o Commission Director must try to effect settlement of the complaint; if they can’t, can appoint a person to investigate the complaint and serve notice on relevant parties. • Director’s powers (s. 22): o Can dismiss a complaint if without merit (s. 22(1)(a)); o Can discontinue proceedings if complainant has refused to accept a fair and reasonable settlement (s. 22(1)(b)); o If something is more appropriately heard in another forum, can refuse to accept complaint (s. 22(1.1)). • Questions of law (s. 31): o HRT can refer questions of law to ABQB. Canadian Human Rights Act – ss. 2, 39-42, 63, 64, 66 9 Purpos e: • Purpose is to give effect to principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered/prevented by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted.

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Definition of “discriminatory practice”: i.e. any practice discriminatory within meaning of ss. 5-14.1. Complain ts • Any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint (s. 40(1)). • Commission can file complaints too if there is reasonable grounds (s. 40(3)). o CONSENT: If filed by someone other than the person who’s the alleged victim, Commission can refuse to deal with the complaint unless the victim consents (s. 40(2)). • If a bunch of similar complaints are filed, can be dealt with together (s. 40(4)). REQUIREMENTS FOR COMPLAINTS: 1. Act or omission happened in Canada and the victim was lawfully present in Canada or temporarily absent but entitled to return (s. 40(5)(a)); or 2. Occurred in Canada and was a discriminatory practice with no particular individual identifiable as a victim (s. 40(5)(b)); or 3. Occurred in Canada and victim was a Canadian citizen or PR (s. 40(5) (c)). Will deal with complaint unless: • Victim ought to exhaust other grievance/review procedures (s. 41(1) (a)); • Complaint would be more appropriately dealt with under another Act (s. 41(1) (b)); • Complaint is beyond the jurisdiction of the Commission (s. 41(1) (c)); • Complaint is trivial, frivolous, vexatious or made in bad faith (s. 41(1) (d)); • Happened more than a year before the complaint ( limitation ) (s. 41(1) (e)). • Of the opinion that it’s been appropriately dealt with under Employment Equity Act (s. 41(2)). Canadian Forces and RCMP (s. 64): • For the purposes of applying the Act, they’re deemed to be employed by the Crown. Binding on Crown (s. 66):

• The CHRA is binding on the Crown – except in matters respecting the Yukon gov’t or gov’ts of NWT/Nunavut. CLASS NOTES: Jurisdiction Over Human Rights The Courts’ Jurisdiction over Human Rights While there is no common law tort of discrimination, the courts have jurisdiction over some claims... • Honda Canada v Keays (2008 SCC): o Courts have jurisdiction over wrongful dismissal claims (breach of K), damages resulting from conduct of dismissal (including discrimination – but discrimination not independent actionable wrong). • Jones v Tsige (2012 ONCA): o Recognition of tort of privacy in Ontario – “intrusion upon seclusion.” o Could open door for SCC to recognize tort of privacy, consistent w/ Charter , UDHR, ICCPR, etc. Involvement other ways: • Under AHRA ss. 31, 35-37 – can refer Qs of law to ABQB and put proceedings on hold until Court’s opinion received. • See also CHRA ss. 48(3) . Tribunals’ Jurisdiction over Human Rights Jurisdiction Over: • Areas, grounds, parties, education, investigation, settlement, hearing, remedies ( Seneca ). 1 0 • Jurisdiction over human rights legislation ( Tranchemontagne ). o Important for access to remedies! • Can decline jurisdiction ( s. 22.(1.1) AHRA, s. 41 CHRA ). • Can consider questions of law – including Charter issues – where there’s no legislation to the contrary ( Martin ).

o In Alberta, our own HRC doesn’t have the power to say a provision is contrary to the Charter per the Administrative Procedures Jurisdiction Act . CASE LAW: Jurisdiction Seneca College v Bhaudauria , 1981 SCC Seneca College v Bhaudauria, 1981 SCC RATIO i. There is no tort of discrimination – can’t base a civil tort action on breach of a HRC. FACTS i. Plaintiff made applications to Seneca College for teaching position; never given interview (despite indications she would be) and alleged that the positions were filled with persons w/ lower qualifications and not of East Indian origin. ii. Claimed discrimination against her in breach of s. 4 of Ont HRC. ISSUE/HELD Is there an intentional tort of discrimination? – i.e. is breach of a HRC enough to ground civil liability? i. NO! There is no tort of discrimination. ANALYSIS i. It was open to Bhaudauria to invoke the procedures of the OHRC and her failure to do so didn’t entitle her to sue at CL or found a right of action on breach of the Code. ii. In cases like Constantine , etc, those were distinguished because the Act covered legally-protected interests; question here is whether there is a positive right at all! iii. Furthermore, the HRC is comprehensive – shows legislative intent that this is where people should look to when they have a human rights claim; displaces any CL regime that might have existed. Tranchemontagne v Ontario , 2006 SCC Tranchemontagne v Ontario, 2006 SCC RATIO i. Statutory tribunals empowered to hear Qs of law are presumptively empowered to apply HR law. ii. HR law (Code) is quasi-constitutional and must be interpreted in a liberal and purposive manner with a view to protecting human rights – give expansive meaning and accessible application. FACTS i. Appellants applied for support under Ontario Disability program; the statutory tribunal found they suffered from alcoholism and dismissed their appeals as the program states individuals addicted to alcohol are not eligible for income support. ii. Appellants argued this provision was inapplicable by virtue of Ont HRC and refusing them support was discrimination and inapplicable because of primacy of Code over other legislation. ISSUE/HELD Did the Tribunal have jurisdiction to consider the HRC in determining eligibility? ii. YES! Statutory tribunals empowered to decide Qs of law are presumed to have jurisdiction to apply the whole law (i.e. including HR legislation) to a matter properly before them. Should have exercised. ANALYSIS i. Where there is no evidence that the legislature is rebutting this presumption, statutory tribunals are

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presumed to have the jurisdiction to apply the law – including human rights law. ii. The Code is fundamental law and its primacy applies to both private citizens and public bodies. Webber Academy Foundation v Alberta (HRC) , 2018 ABCA 207 Webber Academy Foundation v Alberta (HRC), 2018 ABCA 207 – application of s. 31 of AHRA RATIO i. Human rights tribunals can apply the Charter. ii. HRTs must always act consistently with the Charter ( Webber, Dore ). iii. NO JURISDICTION to declare legislation unconstitutional for non-compliance with Charter (exclusive jurisdiction of superior courts per s. 96 of CA, 1867). FACTS i. Non-denominational private school admitted two Muslim students who prayed 5 times per day – incl. speaking aloud, bowing, kneeling. Sometimes prayers would overlap with school. ii. Later, students told they couldn’t pray on campus. School insisted it was non-denominational. Parents filed complaints with AHRC alleging religious discrimination in providing educational services. ISSUE/HELD Did the the AHRT have jurisdiction to apply s. 2(a) of the Charter? 1 1 i. YES! The AHRT can apply the Charter – and in fact a HRT must always act consistently with the Charter in exercising jurisdiction ( Dore ) – but just can’t declare legislation unconstitutional for non- compliance with the Charter. ANALYSIS i. Remitted to new AHRT panel to consider school’s s. 2(a) claim (freedom from religion) – general rule is that new issues can’t be raised on appeal without leave because it causes prejudice to other side ( Warsing ) – especially so for Charter arguments on appeal ( Aftergood ). CLASS 5: Field Trip to AHRC Field trip to AHRC! CLASS 6: The Test for Discrimination Reading s: 1. Ontario Human Rights Commission and O’Malley v Simpson-Sears (1985 SCC). 2. Moore v BC (Education) (2012 SCC) – paras 1-18. 3. Peel Law Association v Pieters (2013 ONCA) – paras 1-6, 51-79. 4. Quebec v Bombardier Inc (2015 SCC) – paras 1-19, 28-98. 5. Stewart v Elk Valley Coal Corp (2017 SCC) – paras 1-10, 18-47, 58-128. Statutory

Framework The Alberta Human Rights Act The Alberta Human Rights Act: • Per section 1 of the AHRA , every law in Alberta is inoperative to the extent that it conflicts with the AHRA . Key Sections of the AHRA : i. s. 12 – the prohibitions contained in the AHRA bind the government; can bring a claim against them under the Act. ii. s. 20 – the complaints provision allows any person except the Commission to bring a complaint, if they have reasonable grounds to believe someone has contravened the AHRA . a. Note that there is no requirement that the claimant be the person to whom the discrimination has happened; it can be brought by someone else on their behalf and “person” includes organizations. b. In every other jurisdiction in Canada, a Commission does have jurisdiction to bring a complaint; function of permitting the Commission to root out systemic discrimination. It is a long-standing criticism of Alberta’s Act that it is missing Commission jurisdiction to bring a complaint. iii. s. 20(2)(b) – one-year limitation is a hard limit; assessed from time of last discriminatory action (if a series of actions). iv. s. 21 – settlements. v. s. 22 – Director can dismiss a complaint which is without merit or discontinue where the complainant refuses to accept a fair settlement offer. vi. s. 26 – allows for appeal from an order of a Director (whether dismissal or continuance). a. Can be appealed to the Chief of the HRC and, if they find in favour of the complainant, the complaint can still go forward to the Tribunal. vii. s. 27 – the significance of an appeal under s. 26 is who will take carriage of the complaint. a. Normally, the Director will take carriage of the complaint, unless there is an appeal and the Chief has decided the case will go ahead (the Director will not take carriage in those circumstances because it would be a conflict for them to do so). viii. s. 32 – when a matter goes to Tribunal, they have the opportunity to dismiss the complaint if it’s without merit after evidence has been called and they’ve fully heard the matter. General Approach to Human Rights Claims: The Test for Discrimination TEST FOR DISCRIMINATION:

1. IS THERE A PROTECTED GROUND? AHRA , preamble; CHRA ss. 3, 3.1. 1 2 The grounds prescribed by the legislature are the only grounds you can bring a complaint under, unless you bring a Charter challenge which is the only way to bring a claim under a ground that is not listed. a. For example, Vriend brought a Charter claim arguing that the exclusion of sexual orientation was a violation of the Charter ; resulted in the courts reading it into the Act. Took 20 years to be explicitly included as a protected ground. 2. IS IT A PROTECTED AREA? AHRA ss. 3-10; CHRA ss. 5-14.1 Must be a protected area such as services customarily provided to the public. Does not cover situations such as public hate speech, for example. a. Note that the internet is federally regulated, and so internet claims are federal jurisdiction under CHRA . 3. IS THERE PRIMA FACIE DISCRIMINATION? The burden is on the claimant to demonstrate prima facie discrimination by satisfying three criteria: A. The claimant’s characteristic is protected from discrimination under the Code . a. Are they bringing a complaint on a protected ground? B. The claimant experienced adverse impact with respect to the service/employment/etc. a. This question depends on the nature of the case – were they adversely impacted with regard to public services, employment, etc? C. The protected characteristic was a factor in the adverse impact. a. Is there a connection between the person’s status as someone who has the protected characteristic/is imputed to have the protected characteristic and the adverse treatment? 4. DO ANY DEFENCES APPLY? The burden shifts to the respondent/defendant to rebut the prima facie discrimination by making one of three defenses. A. Rebutting the facts and claiming no discrimination occurred. a. Essentially – what the claimant says happened is not what happened. B. Justification through BFOR.

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a. Apply bona fide occupational requirement criteria. C. Justification through BFJ. a. Apply bona fide justification! Other Considerations: • There is no requirement to provide a comparator group ( Caring Society ) – particularly when the individuals occupy a unique position in society as Aboriginal people do and requiring a comparator grup would limit their ability to seek protection under Human Rights Legislation ( Caring Society ). • At most, comparator groups are useful evidence ( Moore ). CASE LAW: The Test for Discrimination Ontario Human Rights Commission and O’Malley v Simpson- Sears, 1985 SCC Ontario Human Rights Commission and O’Malley v Simpson-Sears, 1985 SCC RATIO i. Rules that are not necessarily discriminatory on their face ( direct discrimination ) but which have a discriminatory effect ( adverse effects discrimination ) are still discrimination for purpose of HRL. FACTS i. O’Malley was a Seventh-Day Adventist employed by SS (retailer); as part of her religion, she couldn’t work Fri/Sat – however, no full-time shifts were available that didn’t require her to work Fri/Sat so the company fired her. ii. SS argued that requiring all employees to work Fri/Sat was a neutral requirement and wasn’t an intentional act to discriminate against her. ISSUE/HELD Was the requirement that all employees work Friday/Saturday discriminatory against O’Malley’s religion? i. Yes. It was a form of adverse effects discrimination. ANALYSIS i. Rules, regulations, etc. do not have to be discriminatory on their face – direct discrimination – to be discriminatory in effect. ii. Even though there was a reasonable basis for the requirement, SS didn’t try to make any changes to the schedule to accommodate O’Malley’s religious requirements. The Ontario Human Rights Code 1 3 accords the right to be free from discrimination in employment; so, places duty on ER to take reasonable steps to accommodate the employee. a. Under the Code, if rationally connected to the employment a rule causing adverse effect doesn’t need to be justified, just need to take reasonable steps toward accommodation. b. If reasonable steps don’t fully provide accommodation, the burden falls to the complainant to take reasonable steps to accommodate their own interests or else quit.

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Class Notes on O’Malley: • The Court emphasizes that HR legislation is quasi-Constitutional in nature and has to be interpreted broadly and purposively. It is important not to focus just on the intent of a respondent’s conduct but also on its effect. • HR legislation is not meant to be punitive; what we care about is the impact of the actions on the complainant. As a result, intention to discriminate is not required to show discrimination. • Based on this approach, the Court found that O’Malley had been discriminated against by her employer and had experienced penalties not felt by EEs who didn’t have to choose between religious beliefs and employment . Establishing a Prima Facie Case of Discrimination ( O’Malley ): • Means showing that the respondent’s conduct has the effect of imposing “obligations, penalties or restrictive conditions on [the complainant] not imposed on other members of the community.” • Requires bringing forward evidence to cover the allegations made and which, if they are believed, is complete and sufficient to justify finding a verdict in the complainant’s favour. The Test for Discrimination Under s. 15 of the Charter The test has followed the following progression: i. Andrews v Law Society of BC : SCC created a test similar to O’Malley , focusing on disadvantage based on protected grounds. ii. Law v Canada : SCC reformulated test to focus on arbitrariness and stereotyping, which influenced HRL. iii. McGill University Health Centre v Syndicat : Arbitrariness/stereotyping analysis made its way into application of HRL. In Quebec v A , test changed: i. SCC stated that discrimination should be looked at more broadly; stereotyping and prejudice are explicit and intentional methods of discriminating and we must look at disadvantage more broadly . ii. This approach was followed in Quebec v Alliance du personnel professional et technique de la sante et des services sociaux (2018 SCC) and it seems like we are moving back toward the Moore method of establishing discrimination by looking at whether the impugned law on its face or in its impact imposed a burden or denied a benefit based on discrimination. Moore v British Columbia (Education) , 2012 SCC Moore v British Columbia (Education) , 2012 SCC RATIO i. Human rights and equality must be prioritized by the government when making budget cuts. ii. In applying HRL, individuals’ access to services etc. should be compared against the greater

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public in general (and not against only others with the same disability, etc.). FACTS i. Jeffrey Moore had severe dyslexia; he required special education to meet his education needs and went to a special program. The School District cancelled his program citing financial reasons. ISSUE/HELD Was the closure of the program discriminatory? Was it justified? i. YES , the closure was discriminatory; as a result of JM’s disability, he was refused access to a service customarily available to the public (education in general, not special education). ii. NO , it was not justified, because the school district failed to consider the impact of the program’s closure and other options for saving money. HR must be prioritized in making budget cuts. ANALYSIS i. The service that JM was entitled to under s. 8 of the BC HRC was meaningful access to education generally, rather than special education –would be an undesirable “separate but equal” approach. ii. In analyzing whether the District’s conduct was justified: a. Closure was based on a budget crisis, but District had other options for addressing it and cuts were disproportionately made to SE programs while other discretionary programs remained. b. The District undertook no assessment (financial or otherwise) of alternatives to accommodate SE students if the program closed. 1 4 c. Failure to consider other alternatives undermined District’s argument that it was justified in providing no meaningful access to an education because it “had no choice” – failed to consider whether other choices even existed! Moore sets out the following test for prima facie discrimination: 1. Claimant’s characteristic is protected from discrimination under the Code. 2. Claimant experienced adverse impact with respect to the service. 3. The protected characteristic was a factor in the adverse impact. In Moore , the SCC improperly put arbitrariness in the test. • The problem with this is that it almost puts the onus on the claimant to prove that the respondent’s actions were arbitrary; but they don’t know what was in the respondent’s head! It should not be up to the claimant to prove arbitrariness. Peel Law Association v Pieters , 2013 ONCA Peel Law Association v Pieters, 2013 ONCA RATIO i. There only needs to be a connection between the ground and the adverse treatment – there is no burden to show a causal connection, only that the ground was a factor in the treatment. FACTS i. Black lawyers and articling student were the only people asked for ID when they were in the lawyers’

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lounge at the courthouse. Brought application under Ontario HRC re equal treatment w/r/t services, goods and facilities without discrimination due to race or colour. ISSUE/HELD Was the correct test for discrimination applied? i. No – no causal connection is required, the ground must only be a factor in the discrimination. As long as a connection exists, the test is met. ANALYSIS i. The Div Ct applied the following test for discrimination: a. “In order to prove a prima facie case of discrimination, there must be evidence to support the following findings: (a) a distinction or differential treatment, (b) arbitrariness based on a prohibited ground, (c) a disadvantage, and (d) a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.” ii. The traditional test comes from Moore , as above. Per Moore , all that is required to be shown is that there is a connection between the adverse treatment and the ground of discrimination. It doesn’t need to be a causal factor, it just has to be a factor. Otherwise would be too strict a test. Analyzing the burden of proof: • The burden is on the claimant to initially prove a prima facie case – the standard is “more probable than not” on the balance of probabilities. • After a prima facie case is established, the burden is on the respondent to either: o Bring evidence that refutes the claim of discrimination ( evidential burden ). o Establish a defence (usually BFOR or BFJ ). ▪ Establishing a defence generally means admitting the facts but justifying the discrimination; the evidential burden requires refuting the facts underlying the discrimination (e.g. in Peel , refuting by saying you didn’t recognize them, they weren’t wearing robes, etc.). • If the respondent’s evidential burden is met, the onus is on the claimant to show that evidence is false, etc. Quebec v Bombardier Inc , 2015 SCC 39 Quebec v Bombardier Inc, 2015 SCC 39 RATIO i. There is no requirement at step 3 of the Moore test to show a causal connection between the protected characteristic and the adverse impact. ii. Claimant has the burden of balance of probabilities for all three steps of the discrimination test. iii. The burden shifts to respondent to lead evidence refuting discrimination or raising a defence. FACTS i. Claimant had Canadian and US pilot’s license; had to apply for security clearance for training. Flagged as being a security concern, no reasons given. Bombardier refused admission for training purposes because it was contingent on getting security clearance from US Gov’t. ii. Brought complaint alleging he was discriminated against due to denial of services from Bombardier. ISSUE/HELD N/A 1 5

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i. n/a ANALYSIS i. The SCC’s definition of racial profiling incorporates both direct and adverse effects discrimination. ii. In this case, discrimination is framed as a “distinction, exclusion or preference” as compared to Moore ’s “adverse treatment” which is broader and perhaps better includes adverse effects. iii. SCC agrees with Pieters that there doesn’t need to be a causal connection between the ground and the adverse treatment, just that there’s a connection or nexus between the two. Stewart v Elk Valley Coal Corp , 2017 SCC 30 Stewart v Elk Valley Coal Corp, 2017 SCC 30 RATIO i. The notion of arbitrariness has no place in determining PFD – inappropriately puts burden on claimant to show that decision was unreasonable. ii. Messy understanding of addiction – do we expect someone with addiction to be proactive? iii. Discussion of reasonableness of policy should not come in until BFOR justification stage. iv. Only required to be factor, NOT A CAUSAL CONNECTION. FACTS i. Stewart crashed his company vehicle with cocaine in his system; was fired under ER’s “no free accidents” policy which required EEs to come forward before accidents occurred. ii. HRT said he wasn’t dismissed because of disability, he was dismissed because he breached the policy and ER had valid reason for dismissal. Upheld at ABQB and ABCA (O’Ferrall dissented). ISSUE/HELD Was the test for discrimination properly applied by the SCC? i. NO! ANALYSIS i. See above. In Stewart , there is a potentially problematic application of the Moore test. It re-inserts the notion of arbitrariness in establishing a prima facie case of discrimination – which inappropriately puts the burden on the claimant to show arbitrariness and stops the establishment of their case simply because the respondent’s actions were “reasonable.” Discussion of a policy’s reasonableness irrelevant until the defence and justification stage! It’s relevant to establishing BFOR, etc. Furthermore, the test is supposed to ask whether the protected characteristic is a FACTOR – the case law establishes clearly that no causal connection is required. In Stewart , it seems obvious that he was dismissed for reasons connected to his drug use and/or addiction, and so there is a prima facie case for the respondent to rebut through evidence of justification. Class 7: Defending Human Rights Claims Reading s: 1. AHRA ss. 7(3), 11 2. CHRA ss. 15(1)(a)-(g), (2)-(9), 16 3. Meiorin , 1999 SCC 4. Grismer , 1999 SCC 5. Central

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Okanagan School District No 23 v Renaud , 1992 SCC 6. Hydro-Quebec v Syndicat , 2008 SCC 43 Statutory Framework The Canadian Human Rights Act Key Sections: i. s. 15(1)(a) ii. s. 15(1)(g) iii. s. 15(2) – anyone raising BFOR or BFJ must establish that accommodation would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. iv. s. 15(8) – applies to both direct and adverse effects discrimination. v. s. 16 – can adopt special programs, plans, arrangements designed to prevent disadvantage likely to be suffered by groups of individuals related to prohibited grounds of discrimination. 1 6 a. For example, promoting workplace opportunities for people who have been historically disadvantaged is not “reverse discrimination.” vi. s. 17 – can get approval for plans to meet the needs of disabled persons. The Alberta Human Rights Act Key Sections: i. s. 3(2) – no interference with free expression. ii. s. 3(3) – exceptions include signs for facilities used by one gender. iii. s. 7(2) – age and marital status exceptions don’t apply to the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan. iv. s. 7(3) – BFOR exception; acts like an exemption rather than a defence. However, claimant still has to meet burden to establish prima facie discrimination and then burden shifts to defendant to establish BFOR. v. s. 8(2) – exception for advertisements regarding employment for BFOR. vi. s. 11 – the more general “reasonable and justifiable” defence (BFJ). CASE LAW: Defending Human Rights Claims Meiorin – BC v BCGSEU ,

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1999 SCC Meiorin – BC v BCGSEU, 1999 SCC RATIO i. Unified approach to BFOR – applies equally to direct and adverse effects discrimination. ii. Three-part test for BFOR established: a. (1) ER must show that purpose of standard is rationally connected to performance of the job; b. (2) ER must show they adopted standard w/ honest, good faith belief it was necessary to fulfill a legitimate, job-related purpose; c. (3) The standard must be reasonably necessary to accomplish legitimate work-related purpose; ER must demonstrate it is impossible to accommodate individual EEs w/out imposing undue hardship on the ER. FACTS i. Meiorin was a forest firefighter in BC; she lost her job after the province adopted new fitness tests for forest firefighters that involved aerobic standards that were difficult, if not impossible, for most women to meet. ISSUE/HELD Did the government discriminate against Meiorin by dismissing her from her job as a firefighter? i. Yes – her protected ground of sex was a factor in her dismissal from her employment. Was the aerobic standard justifiable as a BFOR? i. No – there was no evidence the standard was necessary. ANALYSIS i. Employers can err on the side of caution and set standards higher than necessary to ensure safe performance – but if men and women do not have equal ability to meet that standard, the effect can be to exclude qualified female candidates for no reason but their sex. ii. Issue in this case was whether the aerobic requirement was BFOR. Two problems identified: a. The standard was descriptive; b. The standard didn’t distinguish between male and female test subjects. iii. Evidence was led showing that women have lower aerobic capacity than most men; with training, they can’t increase their capacity to the level required by the aerobic standard. There was no credible evidence showing that the standard was necessary for men or women to perform the work; prior to the standard, Meiorin performed her work well with no risk to public, colleages, herself. The Test for BFOR ( Meiorin ): (1) The employer must show that the purpose of the standard is rationally connected to the performance of the job. a. In Meiorin , the court accepted that it was rational to have a standard due to safety concerns of the job. (2) The employer must show that they adopted the standard with honest, good faith belief that it was necessary to fulfill a legitimate, work-related purpose. a. In Meiorin , the court found that the standard was adopted honestly and in good faith. (3) The standard must be reasonably necessary to accomplish the legitimate work-related purpose, and employer must show it is impossible to accommodate individual employees without imposing undue hardship on the employer.

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1 7 a. There was no evidence in Meiorin that this particular standard was reasonably necessary for the job; there were problems with the methodology, it was descriptive (rather than getting into the actual qualities required to do the work) and they didn’t consider differences between men and women). Class Discussion of Meiorin : • Individual testing is the gold standard when it comes to reasonable accommodation; however, in some cases it is not enough to meet the BFOR test. • What about EE concerns about “reverse discrimination” in the workforce? o The Court in Meiorin says that it’s only with it to consider EE concerns that are reasonable and not rooted in bias. GRISMER – BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights) , 1999 SCC GRISMER – BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights), 1999 SCC RATIO i. Test for BFJ. ii. Individual testing is the GOLD STANDARD for accommodation. FACTS i. Claimant suffered from eye condition affecting his peripheral vision in both eyes; BC SMV cancelled his license on the basis that his vision no longer met the minimum standard. ii. Exceptions were permitted in other cases, but people with Grismer’s eye condition weren’t permitted to hold drivers’ licenses in BC. No individual testing was available, it was a flat exclusion policy. ISSUE/HELD Was there bona fide justification for the policy? i. No, the standard was not reasonably necessary to achieve the policy’s purpose of safety and unjustifiable discrimination lay with the refusal to give the claimant the chance to show through individual testing that he could be licensed without jeopardizing the goal of reasonable road safety. ii. The absolute standard was not supported by the evidence and those who provide services subject to the HRC must adopt standards that accommodate people with disabilities where this can be done without sacrificing legitimate objectives or incurring undue hardship. ANALYSIS i. Under BC HRC, the Meiorin test applies and requires those governed by HRL to accommodate the characteristics of affected groups. ii. Under the accommodation step of the Meiorin test: a. ACCOMMODATION: Ensuring that each person is assessed according to their own personal abilities rather than presumed group characteristics. b. FAILURE TO ACCOMMODATE: Can be shown by evidence that the standard was set arbitrarily, or that individual assessment was unreasonably refused. c. NO DISCRIMINATION WHERE: The policy or practice is reasonably necessary to an appropriate purpose or goal and accommodation short of undue hardship is incorporated into

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the standard. iii. In this case, the standard was not reasonably necessary because: a. The SMV didn’t show that nobody with the condition could achieve reasonable highway safety; Grismer took action to compensate for his disability. b. SMV didn’t show that the risk/cost of providing individual assessment constituted undue hardship (e.g. simulated driving tests). When applying the Meiorin test, consider these factors from Grismer : 1. Is there accommodation? a. Ensuring that each person is assessed according to their own personal abilities rather than presumed group characteris tics. 2. Failure to accommodate? a. Show with evidence that the standard was set arbitrarily, or that individual assessment was unreasonably refused. 3. Sufficient accommodation? a. BFJ is established where the policy or practice is reasonably necessary to an appropriate purpose or goal and accommodation short of undue hardship is incorporated into the standard. Central Okanagan School District No 23 v Renaud , 1992 SCC Central Okanagan School District No 23 v Renaud, 1992 SCC RATIO i. EEs have the duty to facilitate their own accommodation/can’t refuse reasonable accommodation. 1 8 ii. ERs must take reasonable measures short of undue hardship to accommodate an EE’s religious beliefs and practices. iii. Factors for considering undue hardship: a. Costs to accommodate EE. b. Disruption of Collective Agreement. c. Rights of other employees. d. Interchangeability of workforce. e. Safety issues. iv. Duty to accommodate can fall to both the ER and the union: a. When negotiating CA, must consider if the agreement could be discriminatory. b. If an EE requires accommodation, union has duty at negotiation stage to facilitate accommodation. FACTS i. Renaud was a Seventh-Day Adventist; accommodating him was contrary to the workplace’s union’s collective agreement which had strict rules for shifts and seniority

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accommodations. ISSUE/HELD Did the school district accommodate him? i. No – but where the ER presents a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. ANALYSIS i. If there is a reasonable proposal by the ER, but the EE fails to take reasonable steps to implement the proposal and it founders, the complaint will be dismissed. ii. The complainant is also obligated to accept reasonable accommodation, and the ER’s duty is discharged if a proposal that would be reasonable in all theb circumstances is turned down. Class Notes on Renaud : • While collective agreements are influential and can play into whether a form of accommodation constitutes undue hardship, you can’t take it as written in stone. • Rights of other employees is an important consideration, but only to the extent that those decisions are based on non- discriminatory rationales. Feeling like it’s unfair that someone is getting accommodation due to their religion is insufficient. • Note that this case was decided pre- Meiorin , so it was still using the bifurcated approach to BFOR. These says, even in cases of adverse effects discrimination, a standard may still have to change if unjustified under the Meiorin test. • Size matters – if the ER isn’t big enough to have another position available, the courts usually won’t force them to create one. That would be onerous and undue hardship. Other cases considering duty to accommodate and undue hardship: • The case law is divided as to whether health, safety and cost are the only factors that are considered in determining BFOR under s. 15(2) of the CHRA , or if other factors can be read in. • Air Canada Pilots Association v Kelly , 2011 FC 120: o Other factors can only be considered if they have a demonstrable impact on health, safety, cost (i.e. connected). • Adamson v Air Canada , 2014 FC 83: o Taking a broad and purposive approach to HRL, factors should not be limited to health, safety and cost – should see them as examples of considerations and not a closed list. For example, could potentially include the upholding the sanctity of a union’s collective bargaining rights. Hydro-Quebec v Syndicat des employees des techniques professionnelles d’Hydro Quebec, section locale 2000, 2008 SCC 43 Hydro-Quebec v Syndicat des employees des techniques professionnelles et de bureau d’Hydro Quebec, section locale 2000, 2008 SCC 43 RATIO i. To satisfy BFOR, must be impossible to accommodate (further accommodate) w/out undue hardship. ii. The ER’s duty ends where EE no longer able to fulfill

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basic obligations of the job. iii. There is no duty to change working conditions in a fundamental way, but there’s a duty to (within reason and without undue hardship) arrange the EE’s workplace or duties to enable them to do their work. FACTS i. Complainant had number of physical and mental problems, and her record of absences indicated she missed almost 3 years of work over 7 years. Her ER had adjusted her working conditions in light of her limitations but she was finally dismissed after being absent for 5 months. ii. Her doctor recommended she stop working for an indefinite period, and the ER’s psychiatric assessment showed she wouldn’t be able to work on a regular and continuous basis without having 1 9 the same absentee problem. The ER argued that conditions for return to work suggested by the union’s expert constituted undue hardship. ISSUE/HELD What is the test for undue hardship? Was it met? i. As above – it was met in this case because the ER’s duty to accommodate ends where the EE is no longer able to fulfill the basic obligations of the job. ANALYSIS i. As above. Class Notes on Hydro- Quebec : • It must be impossible to accommodate the EE without undue hardship to establish BFOR. Impossible modifies the notion of undue hardship and not the idea of accommodation period. • The Meiorin test requires ERs to consider alternatives, but the point will come when the ER has done all they can and has offered all kinds of accommodation available but, despite those measures, the EE is unable to resume work in the reasonably foreseeable future. In those cases, undue hardship is established. Exercise: Applying BFOR to Stewart Applying the Meiorin test for BFOR to Stewart: 1) Think about what the rule or workplace standard the employer is trying to justify. How would you put the rule in Stewart into words? a. “No Free Accidents Rule” – can’t show up to work with drugs or alcohol in your system and can’t get into an accident with them in your system. Standard was the safe and efficient performance of work through a zero- tolerance stance on workplace use of alcohol or drugs. In analysis, characterize the policy at the outset! 2) What is the purpose of the policy? a. Promote workplace safety; deter workers from coming to work with drugs or alcohol in their system; encourage workers to take advantage of proactive policy to get treatment; promoting employee health and wellbeing. 3) Rationally connected? a. Workplace safety is important; health of workers and co-workers is important; not hard to establish a rational

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connection. Yes, there is an obvious rational connection. 4) Honest and good faith? a. Yes, appears to be adopted in good faith. 5) Was it impossible to reasonably accommodate Stewart without undue hardship? a. Stewart couldn’t be individually analyzed under pre-incident policy because he didn’t recognize his addiction. b. In his dissent, Gascon says: there’s no guarantee he’ll be reinstated; reinstatement doesn’t mean he’ll get the same job with the same benefits (particularly same level of seniority benefits within his union); and that accommodation needs to take place during the employment, not post-employment. These were, according to Gascon, insufficient to make it reasonable accommodation under the Meiorin test. The Ameliorative Program Defence Under s. 10.1 of the Alberta Human Rights Act : Ameliorative policies, programs and activities 10.1 It is not a contravention of this Act to plan, advertise, adopt or implement a policy, program or activity that (a) has as its objective the amelioration of the conditions of disadvantaged persons or classes of disadvantaged persons, including those who are disadvantaged because of their race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation, and (b) achieves or is reasonably likely to achieve that objective. Class 8: Discrimination in Providing Services Reading s: 1. AHRA s. 4 – here . 2. CHRA s. 5 – here . 3. University of BC v Berg , 1993 SCC – here . 2 0 4. Gwinner v Alberta (Human Resources and Employment) – paras 1-9, 68-93, 234 to end – here . o ABCA decision – here . 5. Canada (CHRC) v Canada (AG) , 2018 SCC 31 paras 1-19, 54-68 – here . 6. Moore , review – here . 7. Webber Academy , review – here . Statutory Framework

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Both the AHRA and the CHRA protect from discrimination in services, employment, retaliation, tenancies, and publications and notices. There is not a lot of case law about what does and doesn’t constitute tenancy under the legislation. Areas of Discrimination i. Services: AHRA s. 4 / CHRA s. 5 ii. Employment/Employment Organizations: AHRA ss. 6-9 / CHRS ss. 7-11 iii. Retaliation: AHRA s. 10 / CHRA s. 14.1 iv. Tenancy: AHRA s. 5 / CHRA s. 16; Friedmann v MacGarvie, Miller v. Publications and Notices: AHRA s. 3; CHRA s. 12 It is important to always reference a protected area and protected ground under the 3-step test for discrimination. Always note the relevant areas and grounds when making a human rights complaint. Alberta Human Rights Act Discrimination re goods, services, accommodation, facilities 4 No person shall (a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or (b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons or of any other person or class of persons. General Prohibition: • The general prohibition under s. 4 is denying goods, services or facilities customarily available to the public. This prohibition convers outright denials as well as discrimination in the provision of those services. Section 4 of the AHRA • Applies to public and private providers of goods, services, facilities to the “public.” – Berg, Webber • Every service has its own public, no need to serve entire public at large. – Berg, Webber • There may be some possibility for private sector providers to create spaces free from religion. – Webber • There are some restrictions and exceptions based on age, particularly regarding tenancies. • Can apply to legislated benefits as a “service.” – Gwinner

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o Split in case law suggests legislated benefits are services customarily available to the public; excluding groups in a discriminatory manner may be basis to bring a claim. – Gwinner, Tranchemontagne o Under CHRA, cannot bring a direct challenge to legislation; proper way is to bring a Charter challenge. – Matson Can distinguish Matson/Andrews in Alberta as we have a primacy clause under the AHRA; however, likely that a respondent would say that only a Charter challenge is appropriate. Age as a protected ground: • Age was added for the first time in 2018 under ss. 4.1 and 4.2 of the AHRA . o Note that the argument of discrimination based on family status was previously used for when you were denied access to services due to having young children (e.g. hotels, tenancy). 2 1 o Section 4.2 grandfathers accommodations that fall within the relevant categories that have a no-children policy in place and excludes claims against those service providers under age/family status. • In the context of tenancy under s. 5 , age is now included and applies to landlords under s. 5(3) . o However, “age” only includes individuals 18 and over. o As a result, a landlord can validly not rent to you on the basis of your age if you are under 18. • See also the Human Rights (Minimum Age for Occupancy) Regulation , AR 252/2017 . o Under s. 1 , minimum age for occupancy must not prevent occupancy by a person providing personal/HC services to an occupant; minors who the occupant has become primary caregiver of through unforeseen event. Canadian Human Rights Act Denial of good, service, facility or accommodation 5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

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(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination. CASE LAW: Discrimination in Providing Services To figure out whether there is a service customarily available to the public ( Caring Society ): 1. Look to the benefit or assistance being held out ( Watkin ). a. Look to the particular actions said to give rise to the discrimination to determine if they’re services – is the benefit or assistance the essential nature of the activity? ( Caring Society ). b. e.g. the benefit or assistance of funding to make child and family services available in Caring Society . 2. Is there a public relationship between the provider and user? ( Berg ). a. Public relationship determined in relational terms – the public doesn’t need to be large or entire public, could be a small public ( Berg ). 3. Delegation considerations: a. Even if a provider doesn’t directly deliver the service, if it has significant amounts of influence and has the ultimate power to remedy inadequacies, then it is responsible for the assistance and benefit that it holds out ( Caring Society ). Examples of Services in Case Law: • Funding – Caring Society . • Discretionary services at university – Berg . • Education in general – Moore . o Not special education – it is meaningful access to education in general that is the service; don’t want to use separate but equal approach. University of BC v Berg , 1999 SCC University of BC v Berg, 1999 SCC RATIO i. Services protections at universities apply both at and after admission.

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ii. Every service has its own public; no requirement to serve the entire public at large for HRL to apply. a. To determine which services are covered by HRL, must take a principled approach to the relationship between the service provider and the user. iii. Discretionary services can still be considered ‘customarily available’ to the public. a. e.g. Berg’s rating sheet. FACTS i. Berg, a master’s student at UBC, had depression which caused her to deface a washroom and attempt to throw herself through a window. ii. When the school moved premises, she was denied a key to the building even though other grad students were given one. Later, a faculty member refused to give her a rating sheet (which she needed to get a job) based on Berg’s behavior; all other students were given one. 2 2 ISSUE/HELD What is the proper meaning of the phrase, “customarily available to the public”? i. Public is defined in terms of relationships, not quantity – every service has its own public. ANALYSIS Majority i. The word public can’t/shouldn’t include every member of a community – applying a liberal and purposive approach defines “public” in relational terms, not terms of quantity. ii. There shouldn’t be a different standard for discrimination at admission versus discrimination after acceptance; that would allow institutions to admit people then deny meaningful access which would make admission meaningful. iii. To determine which services are covered by the act, important to take a principled approach to look at the relationship between the service and the user. Dissent i. The rating sheet wasn’t a service “customarily available to the public,” so the BC HRC had no jurisdiction to consider the complaint. ii. The discretion exercised by the Director and faculty member refusing to fil out a rating sheet on Berg’s behalf are matters unique to the University. The proper remedy lies with UBC administration and not with the HRC. Class Notes on Berg : • This case stands for: o Services protections apply at and after admission. o Defining “public” – every service has its own public. • It was important that HRL applied in this case, as the Charter only applies if the University is acting as a government actor or implementing a government policy. The court wanted to make sure that there is some human rights recourse in the university setting, particularly since there is no tort of discrimination. • Activities of a service provider are covered by HRL where those services are part of the public relationship with

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the user. • Discretionary services are still services customarily provided to the public. • Because Berg’s mental disability was a factor in the denial of these services to her, she was discriminated against contrary to the Code. Comparison of School-Related HR Cases: • See also Moore , regarding education as a service; meaningful access is required (not just prima facie access). • See also Webber Academy regarding private schools, interpretation of s. 4 consistently with freedom of religion. Revisiting Webber Academy WA’s argument was that the religious freedom section of the AHRA must take into account the religious rights of those who wish to have a secular school free of prayer space from students whose faith requires them to pray during the day. Section 4 must be interpreted consistently with the Charter , which also protects freedom from religion. The ABCA said... • Yes, HRT’s have to apply HRL consistently with the Charter ; must consider whether it’s consistent with the Charter to have a secular school. However, decided there wasn’t enough information on the record to determine if this applied in this case. • Sent the case back to the AHRT for reconsideration. The SCC... • Denied the appeal. If the AHRT is not comfortable deciding the question, it can be sent back to the ABCA to interpret s. 4 of the AHRA so that it is consistent with s. 2(a) of the Charter . Considering ss. 11 and 7(3)... • You can’t contract out of HRL – but, if someone is aware that a job conflicts with their religious duties and decides to take the job anyway, these sections would likely apply even though there would be a prima facie violation. Gwinner v Alberta (Human Resources and Employment) , 2002 ABQB 685 / 2004 ABCA 210 Gwinner v Alberta (Human Resources and Employment), 2002 ABQB 685 / 2004 ABCA 210 RATIO i. “Services customarily provided to the public” includes government benefits. 2 3

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FACTS i. The Widows’ Pension Act provided benefits to married and widowed women but did not apply to women who were divorced or were never married. ii. The intention of the Act was to provide a pension bridge to remedy lowered income due to unemployability, reliance on dead spouse, or relational dependency (reflecting influence of traditional role of women in home lessening employment or earning opportunity). ISSUE/HELD Were the claimants discriminated against in the provision of benefits under the Act? i. YES – the WPA denies pension and benefits on the basis of marital status. Was the denial of benefits to claimants a denial of services customarily provided to the public? i. YES – government benefits are services customarily provided to the public. ANALYSIS i. HRL is quasi- constitutional and prevails over ordinary legislation to the extent necessary to avoid conflict ( Heerspink ), unless the legislature clearly and unequivocally indicates the contrary. ii. The goal of AB’s HRA is to affirm and give effect to the principle that all persons are equal in dignity and rights; it prohibits denying services customarily available to the public on basis of marital status. iii. Reasonable and justifiable defence: a. The omission/exclusion of divorced and separated women is not justifiable; however, there is reasonable justification for the omission of single people. b. Exclusion of divorced/separated people is indefensibly discriminatory because it perpetuates the view that they are less capable and less worthy of recognition or value as human beings or as members of Alberta society and exclusion violates their human dignity. Class Discussion of Gwinner : • HRL is primacy legislation; there are explicit provisions in the AHRA that say any other AB legislation inconsistent with the AHRA is inoperable to the extent of that inconsistency ( s. 1 ) and the Act applies to the Crown ( s. 12 ) – so the Act theoretically applies to legislation. • Anyone who contravenes the Act must cease to do so and avoid doing so in the future; consistent with the application of s. 4 of the Act to government legislation, the government has to cease applying the law in a way that withholds benefits. See also Tranchemontagne : • Not only is it open to the HR Tribunal to apply primacy HR legislation, it is their duty to do so. This was another case in which legislation was preventing a group from receiving benefits in a way that was discriminatory. Andrews/Matson – Canada (CHRC) v Canada (AG) , 2018 SCC 31 Andrews/Matson – Canada (CHRC) v Canada (AG), 2018 SCC 31 RATIO i. Discriminatory legislation cannot be challenged under the CHRA; a Charter challenge is required. FACTS i. Complaints that Indian and Northern Affairs Canada engaged in discriminatory practice in the provision of services contrary to the CHRA by denying form of registration under the Indian Act that the complainants would have been entitled to if past discriminatory policies, now repealed, had not been enacted. ii. Complaint covered services, race, origin, sex, and family status. ISSUE/HELD Is the CHRT’s holding that legislation is not a

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service under the CHRA a reasonable interpretation? i. YES – legislation is not a service under the CHRA; a Charter challenge is required. ANALYSIS i. The SCC held that the CHRT reasonably held that the complaints before them were properly characterized as direct attacks on legislation and that legislation in general does not fall within the meaning of services. Class Notes on Andrews/Matson : • This case argued that being registered as an Indian under the Indian Act has benefits that are associated with registration – taxation, housing on reserve lands, intangible benefits as discussed in McIvor like social acceptance – and so it appears that we are dealing with benefits-conferring legislation. • SCC held in this case that you can’t make direct attacks on legislation under the CHRA; need to make a Charter challenge. Seems to be based on Murphy , in which the court held you can’t challenge legislation directly as a CHRA challenge. • KEY: The CHRA does not have an explicit primacy clause, unlike the AHRA. Other Cases on Services Government Benefits and Services: 2 4 • Tranchemontagne – not considered a direct attack on legislation; more tangible benefits scheme. • Grismer – access to driver’s license. Private Services: • Bombardier – access to training. • Pieters – access to courthouse lounge. Class 9: Discrimination in Employment & Retaliation Reading s: 1. Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission) , 2011 ABCA 3 – here . 2. McCormick v Fasken Martineau DuMoulin LLP , 2014 SCC 39 – here . 3. BC HRT v Schrenk , 2017 SCC 62 at paras 1-13, 27-70, 85-95 – here . 4. Robichaud v Canada (Treasury Board) , 1987 SCC – here . 5. Walsh v Mobil Oil Canada , 2008 ABCA 268 at paras 1-31, 65-107, 115-

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157 – here . Statutory Framework Alberta Human Rights Act Equal pay 6 (1) Where employees of both sexes perform the same or substantially similar work for an employer in an establishment the employer shall pay the employees at the same rate of pay. (2) No employer shall reduce the rate of pay of an employee in order to comply with this section. (3) When an employee is paid less than the rate of pay to which the employee is entitled under this section, the employee is entitled to recover from the employer by action the difference between the amount paid and the amount to which the employee was entitled, together with costs, but (a) the action must be commenced within 12 months from the date on which the cause of action arose and not afterwards, (b) the action applies only to the wages of an employee during the 12-month period immediately preceding the termination of the employee’s services or the commencement of the action, whichever occurs first, (c) the action may not be commenced or proceeded with when the employee has made a complaint to the Commission in respect of the contravention of this section, and (d) no complaint by the employee in respect of the contravention shall be acted on by the Commission when an action has been commenced by the employee under this section. Discrimination re employment practices 7 (1) No employer shall (a) refuse to employ or refuse to continue to employ any person, or (b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person. (2) Subsection (1) as it relates to age and marital status does not affect the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan. (3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

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Applications and advertisements re employment 2 5 8 (1) No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant (a) that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person, or (b) that requires an applicant to furnish any information concerning race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation. (2) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. Membership in trade union, etc. 9 No trade union, employers’ organization or occupational association shall (a) exclude any person from membership in it, (b) expel or suspend any member of it, or (c) discriminate against any person or member, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or member. An employer’s organization is an employer’s organization that directs work; they may set rules and guidelines that apply generally in the industry. An occupational association would be, for example, the Law Society of Alberta – a professional association that someone is required to belong to in order to practice law in Alberta. Think also the Canadian Medical Association, Nursing Association, etc. If those associations have discriminatory practices, they’d be caught under s. 9. Prohibitions regarding complaints 10 (1) No person shall retaliate against a person because that person (a) has made or attempted to make a complaint under this Act, (b) has given evidence or otherwise participated in or may give evidence or otherwise participate in a proceeding under this Act,

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(c) has made or is about to make a disclosure that person may be required to make in a proceeding under this Act, or (d) has assisted in any way in (i) making or attempting to make a complaint under this Act, or (ii) the investigation, settlement or prosecution of a complaint under this Act. (2) No person shall, with malicious intent, make a complaint under this Act that is frivolous or vexatious. Overview and Explanation: • s. 7(2) – exception for bona fide retirement pension plan. • s. 7(3) – exception for BFOR. • s. 9 – an employer’s organization is the organization that directs work and can set rules and guidelines that apply generally in the industry. o For example, the Law Society of Alberta – a professional association that someone is required to belong to in order to practice law in Alberta. • s. 10 – prohibits retaliation against an individual who files a complaint. 2 6 Alberta’s pay equity provision is less robust than those in other jurisdictions. It only requires equal pay for the same work – which seems redundant if we already have a general prohibition against discrimination under s. 7. Also note that there is no definition of employer under the AHRA – that has fallen to be determined by the case law. Canadian Human Rights Act Equal wages 11 (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

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Assessment of value of work (2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed. Purpos e 2 The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. The CHRA has as part of its purpose the goal of ensuring that employment equity includes proportional representation for Aboriginal and visible minority people in the workforce. Employme nt 7 It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. Employment applications, advertisements 8 It is a discriminatory practice (a) to use or circulate any form of application for employment, or (b) in connection with employment or prospective employment, to publish any advertisement or to make any written or oral inquiry that expresses or implies any limitation, specification or preference based on a prohibited ground of discrimination.

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Employee organizations 9 (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination (a) to exclude an individual from full membership in the organization; (b) to expel or suspend a member of the organization; or (c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement relate to the individual. 2 7 Discriminatory policy or practice 10 It is a discriminatory practice for an employer, employee organization or employer organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. Overview of Sections: • The CHRA’s scheme is broader – “work of equal value” under s. 11 is different from just the same work. This goes a step further beyond the Alberta scheme because it looks beyond the job itself toward the actual value of the work being provided. • Note that the CHRA has as part of its purpose the goal of ensuring that employment equity includes proportional representation for Aboriginal and visible minority people in the workforce under s. 2 . • s. 7 – discriminatory practice to both refuse and continue to employ someone based on prohibited ground. • s. 8 – prohibition on discriminatory advertisement/hiring practices. The CHRA has no definition of employer, but there is a definition of ‘employment.’ CASE LAW: Discrimination in Employment and

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Retaliation Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission) , 2011 ABCA 3 Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission), 2011 ABCA 3 RATIO i. Apply the contextual approach to determine if there is an EE/ER relationship. Factors include: a. Whether there is a more obvious ER; b. Source of remuneration/financial burden; c. Normal indicia of employment (i.e. Sagaz factors); d. Control and power – hiring, dismissing, disciplining; e. Direct benefit of EE’s services; f. Involvement of EE in organization; g. Perception of parties; h. Whether relationship deliberately structured to avoid statutory responsibilities. ii. Other relevant factors for determining relationship where more than one potential ER: a. Nexus between co-ER and EE including direct contractual relationship; b. Independence between co-ER and primary ER; c. Nature of arrangement between co-ER and primary ER; d. Extent to which co-ER directs work. iii. No EE/ER relationship will be found where the relationship is too remote. FACTS i. Luka was denied access to a Syncrude worksite because he failed a drug test; he filed a complaint against Syncrude with the HRCC. ii. Syncrude had a policy that contractors couldn’t bring workers onto their work site unless the workers passed a drug test. iii. Luka was technically an EE of L&H, who transferred him to the Syncrude site. Syncrude was never his direct employer; never hired/paid/directed him and L&H was at all times his ER under a union collective agreement which Syncrude was not a party to. ISSUE/HELD Was Syncrude his employer for the purpose of applying human rights legislation? i. NO – applying the contextual approach, Luka’s relationship with Syncrude was too remote to justify finding an employment relationship. ANALYSIS i. Remedial statutes must be given flexible and contextual interpretation; as a result, courts will recognize a wider definition of “employer” than exists at common law: a. Includes relationships that might otherwise be deemed self-employment or contractor work. ii. Example cases for broad application of “employer” under HRL: 2 8 a. Pannu v Prestige Cab Ltd (1986 ABCA) – drivers owned their own taxis and were not paid by Prestige; but Prestige paid EI premiums, etc. b. Re Prue (1984 ABQB) – public officer held to be EE for purpose of Act even though not at CL. c. Bugis v University Hospitals Board (1990 ABCA) – held that hospital/physician relationship did not fall under employment under the Act. d. Fontaine v Canadian Pacific Ltd (1991 FCA) – Fontaine was hired as a cook by Smith, who assigned him to work on Ks with its only customer, CPR; CPR found to be his ER as it was Smith’s only customer and CPR had control over the operation. McCormick v Fasken Martineau DuMoulin LLP ,

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2014 SCC 39 McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39 RATIO i. TEST: To determine whether there is an employment relationship, look at who is responsible for determining working conditions and financial benefits ( control ) and to what extent the worker has a say in those determinations ( dependency ). ii. Key factors related to employment: a. Degree of control of ER; b. Dependency/vulnerability of EE; c. Utilization/financial burden/remedial purpose/other factors. FACTS i. McCormick became an equity partner at FMD in 80s; equity partners voted to adopt a provision in the Partnership Agreement under which equity partners had to retire at 65 and divest ownership shares after which the partner could continue working as EE or “regular” partner w/out equity stake. ii. In 2009, McCormick brought a claim alleging this provision constituted age discrimination under s. 13(1) of the BC HRC ; FMD argued that claim wasn’t within the HRC’s jurisdiction as he was not an employee as required/covered by the Code. iii. Judicial History: a. BC HRT found there was an employment relationship based on Crane factors (utilization, control, financial burden, and remedial purpose). Found FMD “utilized” him to provide services, exercise control through managing partner directions, FMD had burden of paying his wages, and claim of age discrimination engaged broad remedial purpose of Code. b. BCCA found no employment relationship because partners are not legally separate entities from their partnership, and so it is legally impossible for him to be employed by partnership. ISSUE/HELD Does McCormick’s relationship with the firm fall within the jurisdiction of the BC HRC over employment? i. No, but that doesn’t mean a partner can never be an EE under the code – look at control and dependency. ANALYSIS i. The Code is quasi-constitutional legislation requiring generous interpretation to achieve its broad public purposes, including the prevention of arbitrary disadvantage or exclusion based on enumerated grounds. Employment is one specific context covered. ii. What is employment under HRL? a. The formalistic common law approach is too restrictive for HRL. b. Must apply an expansive approach under Code; as a result, ICs can be EEs under HRL even though they might not be in other contexts. c. For the HRL to apply to partnerships, an express statutory provision may be required since they relationship with the partnership is not legally one of employment (as it is not a separate legal person from then partners). Or else, a partnership situation where powers, rights, protections normally associated with partnerships are diminished. BC HRT v Schrenk , 2017 SCC 62 BC HRT v Schrenk, 2017 SCC 62 RATIO i. Discrimination in employment includes discrimination from co- workers, even those with different employers, as long as there is a sufficient nexus with the employment context. ii. TEST:

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Does the discriminatory conduct have a sufficient nexus with the employment context? a. Was the respondent integral to the complainant’s workplace? b. Did the impugned conduct occur in the complainant’s workplace? c. Was the complainant’s work performance/environment negatively affected? 2 9 d. Was the complainant vulnerable/captive audience to other perpetrators of discrimination beyond the ER (e.g. harassing coworker)? FACTS i. S made racist and homophobic statements to SM, his superior, at work; SM complained to his own boss. S was ultimately fired for his statements. SM filed a complaint with the BC HRT against S alleging discrimination on the basis of religion, place of origin, sexual orientation . ii. S filed to dismiss on basis that s. 13 of the BC HRC had no application because he was not in an employment relationship w/ SM (SM was his superior, in fact). iii. Judicial History: a. BC HRT held it had jurisdiction and denied S’s application. b. BCSC dismissed S’s application for JDR. c. BCCA allowed S’s appeal, found that the BC HRT had no jurisdiction over SM’s complaint. ISSUE/HELD Is this a valid employment complaint, even though SM was S’s superior? i. Yes – Code is not limited to protecting EEs solely from discrimination by superiors; modern stat interpretation and HRL interpretation rules require s. 13(1)(b) to be interpreted to prohibit discrimination against Ees whenever that discrimination has a sufficient nexus with employment context; includes discrimination by co-workers, even when they have a different employer. ANALYSIS i. The BC HRC prohibits employment discrimination by “any person” – meaning is broad, encompasses a broader range of actors than just a person with economic authority over the complainant. Discrimination must be “regarding employment” – i.e. requires a nexus with employment. ii. The BC HRT didn’t err in holding S’s conduct was covered, because as foreman of the worksite he was an integral and unavoidable part of SM’s work environment; his conduct had a detrimental impact on the workplace because it caused SM to contend with “repeated affronts to his dignity.” Robichaud v Canada (Treasury Board) , 1987 SCC Robichaud v Canada (Treasury Board), 1987 SCC RATIO i. Employer are always liable for all acts of employees “in the course of employment” – i.e. related to or associated with employment, directly and indirectly. It is statutory, not vicarious, liability. a. Always examine whether the behavior arose in the course of employment. ii. Liability arises even if employers do not have knowledge of the discrimination, because this approach is most in line with the remedial approach to HRL. FACTS i. Robichaud filed a complaint with the CHRC that she was sexually harassed, discriminated against, and intimidated by her ER, the Department of National Defence, and that her supervisor (Brennan) was the one who harassed her. ii. Brennan supervised Robichaud’s supervisor; Brennan had principal input into the ER’s decision w/r/t satisfactory completion of Robichaud’s probation period. ISSUE/HELD Is the employer responsible for

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unauthorized discriminatory acts of its employees in the course of their employment under s. 6(3) of the CHRA? i. Yes – the Act is concerned with removing discrimination, not punishing behavior; only the employer can remedy the undesirable effects of discrimination and provide a healthy work environment. The remedies required under the Act are only available to the employer. ANALYSIS i. The Act exists to redress socially undesirably conditions; not to punish. Thus, intention to discriminate is not a necessary element of discrimination ( O’Malley ). ii. Because the Act is concerned with the effects – not causes – of discrimination, only the ER can remedy undesirable effects and provide the remedy of a healthy work environment. iii. The Act contemplates the imposition of liability on ERs for all acts of their EEs “in the course of employment” – interpreting in purposive fashion means in any way related to employment. iv. In this case, it is the authority invested in the supervisor by the ER that enables him to commit the wrong and sexually harass Robichaud. Who is an Employer? Other cases: • Cormier v Alberta , 1984 ABQB o Independent contractors can also be EEs under purposive application of the Act. • Nixon v Vancouver Rape Relief Society , 2002 BCHRT o Volunteers may be “employees” as cited in McCormick . 3 0 Walsh v Mobil Oil Canada , 2008 ABCA 268 Walsh v Mobil Oil Canada, 2008 ABCA RATIO i. To show retaliation under s. 10(1) of the AHRA , a complainant must establish (directly or by inference) on balance of probabilities: a. That the employer’s treatment was connected to the initial complaint; and b. That the alleged conduct was, at least in part, a deliberate response by the employer to the complaint. Intent is inferable. FACTS i. Walsh was hired by Canadian Superior Oil, which merged with Mobil. She wanted to be a land agent; at the time, there had never been a female land agent before. She encountered a ton of obstacles: she was offered a probationary field position and had to commute with her own vehicle, which

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wasn’t required of male land agents. ii. When she expressed her concerns to superiors, she was told that if she didn’t accept the offer then her continued employment at Mobil would be jeopardized. iii. She filed a complaint with the AHRC against Mobil alleging discrimination based on gender under the equal pay for equal work provision; it was dismissed. She filed another alleging that Mobil retaliated against her for filing the first complaint by firing her. ISSUE/HELD Was there retaliation? i. Yes – and retaliation can be inferred. ANALYSIS i. Intention, per Majority, is an inherent part of retaliation; there has to be some degree of consciousness on the part of the party that is alleged to have retaliated. However, it is possible to infer this intention (otherwise would be a very high bar). Class 10A: Sex and Gender Reading s: 1. AHRA ss. 3-9, 44. 2. CHRA ss. 3, 11, 15. 3. Action Travail des Femmes v CNR Co , 1987 SCC 4. Brooks v Canada Safeway , 1989 SCC 5. Janzen v Platy Enterprises , 1989 SCC 6. Friedmann v MacGarvie , 2012 BCCA Statutory Framework Canadian Human Rights Act Equal Wages (s. 11): • Equal Wages: It’s discriminatory for an ER to establish or maintain a difference in wages between male and female EEs employed in the same establishment who are performing work of equal value (s. 11(a)). • Assessment of value of work: Criterion to apply is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed (s. 11(b)). • Separate establishments: Separate establishments established/maintained to maintain wage differences will be deemed to be the same establishment (s. 11(c)). • Prescribed reasonable factors: It is not discrimination to pay male and female EEs different wages if based on prescribed guidelines from the CHRC to be a reasonable factor justifying the difference (s. 11(4)). o Sex is not a reasonable factor (s. 11(5)). Sexual Harassment (s. 14(2)): • Sexual harassment is harassment on a prohibited ground of

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discrimination. Exceptio ns • Special leave or benefits connected with pregnancy or child-birth is not a discriminatory practice (s. 15(1)(f)). 3 1 CASES: Sex and Gender Action Travail - CN v Canada (CHRC) , 1987 SCC Action Travail - CN v Canada (CHRC), 1987 SCC RATIO i. Definition of systemic discrimination: a. Discrimination which “... results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces – for example, that women ‘just can’t do the job.’ To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.” ii. An employment equity program falls within the scope of s. 41(2)(a) of the CHRA; jurisdiction to order these kinds of special programs comes from s. 53(2) of the CHRA. FACTS i. Action Travail des Femmes alleged that CN was guilty of discriminatory hiring practices contrary to s. 10 of the CHRA by denying employment opportunities to women in certain unskilled positions. ii. Judicial History: a. HRT found CN liable for systemic discrimination, based on policies that prevented and discouraged women from working there. It imposed special employment program (aka paragraph 2) at CN – including requirement that they increase proportion of women. b. FCA set aside paragraph 2 on basis that HRT exceeded its jurisdiction under the CHRA because the HRT’s power is limited to prescribing measure to prevent future recurrence and not to remedy the consequences of past discrimination. ISSUE/HELD Did the CHRT have the jurisdiction under s. 41(2)(a) to impose an “employment equity program” on CN to address the problem of systematic discrimination in hiring/promotion against women? i. YES! – the Order was within their jurisdiction; it was designed to break a continuing cycle of systematic discrimination to ensure that future applicants and workers would not face the same discriminatory barriers. An employment equity program that is rationally designed to combat systemic hiring/promotion discrimination is within the scope of s. 41(2)(a). ANALYSIS i. The employment equity program was designed to break a continuing cycle of

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systemic discrimination; the goal was not to compensate past victims or provide new opportunities for specific individuals, but to ensure that future applicants/workers would not face the same barriers. ii. To combat systemic discrimination, look to patterns of discrimination & destroy them; was a fact that hiring/promotion policies amounted to systemic denial of equal employment. Brooks v Canada Safeway Ltd , 1989 SCC Brooks v Canada Safeway Ltd, 1989 SCC RATIO i. Not all group members need be disadvantaged in the same way for discrimination to be established. ii. “Voluntariness” arguments are irrelevant and inappropriate in applying HRL – the Court is not convinced re any alleged “voluntary” nature of pregnancy. iii. Pregnancy is discrimination on the basis of sex (in this case, discrimination in the receipt of benefits). iv. Just because some jurisdictions specifically include a ground (e.g. pregnancy) doesn’t mean that jurisdictions that don’t explicitly name that ground do not protect it implicitly. Always apply broad and purposive approach. FACTS i. Safeway’s group insurance plan provided weekly benefits for loss of pay due to accident/sickness; covered pregnant EEs subject to exclusion starting in 10 th week prior to due date end ending with 6 th week after week of delivery. ii. During that period, pregnant women weren’t entitled to any compensation under the plan even if they suffered from an ailment unrelated to pregnancy. Appellants were pregnant and denied weekly benefits; they claimed discrimination on the basis of sex. iii. Judicial History: a. MB HRC dismissed their claims of discrimination on the basis of sex contrary to s. 6(1) of HRA b. MBQB and MBCA upheld MB HRC’s decision. ISSUE/HELD Did the 17-week disentitlement period constitute discrimination on the basis of sex? 3 2 i. Yes – it is discrimination on the basis of pregnancy. Pregnant EEs receive significantly less favorable treatment than other EEs and the plan singles out pregnancy for disadvantageous treatment in comparison with any other health reason preventing an EE from reporting to work. ANALYSIS i. Discrimination on the basis of pregnancy: a. Complete disentitlement constituted discrimination by reason of pregnancy; pregnancy is a valid health-related reason to be absent from work, and the plan is designed to compensate EEs who are absent for valid health-related reasons. b. By distinguishing pregnancy, the plan imposes unfair disadvantage on pregnant women; anti- discrimination legislation exists to remove unfair disadvantages in society. c. When an ER enters the field of compensation for health conditions and excludes pregnancy, it is discrimination. Under-inclusion is a backhanded way of discriminating. ii. Discrimination on the basis of sex: a. Discrimination on the basis of pregnancy is sex discrimination; in line with interpreting HRL

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broadly and purposively. Sex discrimination because of biological fact that only women have capacity to become pregnant. Janzen v Platy Enterprizes Ltd , 1989 SCC Janzen v Platy Enterprizes, 1989 SCC RATIO i. Definition of sexual harassment: a. Sex discrimination is practices or attitudes that have the effect of limiting the conditions of employment of a person on the basis of a characteristic related to gender. b. Sexual harassment is unwelcome conduct of a sexual nature that detrimentally affects the workplace or causes adverse work consequences. ii. Test for sexual harassment: a. Must be unwelcome act. i. Because HRL is remedial, test is whether the actor ought reasonably to have known that their conduct was unwelcome. b. Must be: i. A hostile environment harassment; or ii. Leads to tangible adverse consequences ( quid pro quo harassment). iii. No need for all female employees to be harassed to make out claim for sexual harassment. iv. Employees are liable for employee acts within the course of employment ( Robichaud ). FACTS i. Appellants were servers at Pharos Restaurant, owned/operated by Platy – Platy president was the restaurant manager. Sexually harassed by cook. He had no authority but was represented by himself and manager as having firing control.. She objected, conduct stopped but cook made work hostile. ii. G was a victim of similar behavior; after reporting it, it culminated in harassment from cook + manager until she was fired. ISSUE/HELD Is sexual harassment sex discrimination? i. Yes – it is a form of sex discrimination; it’s a practice/attitude which has the effect of limiting the conditions of employment of a person on the basis of a characteristic related to gender. Can an ER be held liable for sexual harassment committed by an EE? i. Yes – Platy was liable for the actions of its EE based on Robichaud ; ii. EE was acting in respect of his employment when he harassed J and G, his actions were clearly work- related, and his authority was given to him by virtue of his station. Platy did not meet its responsibility to ensure that this power was not abused. ANALYSIS i. The purpose of the Code is to establish uniform working conditions for EEs, subject to exceptions discrimination based on sex is prohibited. Equity in employment means that nobody is denied opportunities for reasons that have nothing to do with ability; access free of arbitrary obstructions. ii. Sexual harassment is sexually-oriented discrimination that endangers a woman’s job. iii. The fact that other jurisdictions’ legislation expressly names sexual harassment doesn’t mean that sexual harassment is not protected by MB’s HRL. Those jurisdictions are just seeking to make express and explicit what had previously been implicit. iv. There is no requirement that all members

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of a protected class be treated the same – it is not required that all female workers be sexually harassed to make out a sexual harassment claim!!! Friedmann v MacGarvie , 2012 BCCA 445 3 3 Friedmann v MacGarvie, 2012 BCCA 445 RATIO i. Sexual harassment protection applies in the tenancy context. ii. Tenants are entitled to quiet enjoyment of property free from harassment and discrimination. iii. No requirement to prove differential treatment as compared to men, as long as gender is shown to be a factor in the adverse treatment. FACTS i. MacGarvie rented in an apartment building owned by Friedmann and gave oral notice to terminate because she found his treatment of her inappropriate. ii. BC HRT found that the following constituted sexual harassment: a. Gifts and inappropriate comments including referring to his tenants as beautiful women and repeatedly asking if her BF was in the apt when picking up her rent cheque, etc. b. Put his hand on her buttocks while showing her a bicycle. c. Asked Qs about her male friends, derogatory comments about male visitor, and told her: “I don’t care who you sleep with, if you’re a lesbian, this is a bad man and he has to leave.” iii. Judicial History: a. BCHT found that F sexually harassed her; awarded $10k for injury to dignity, feelings and self-respect, as well as $9.5k in expenses and costs. b. Chambers judge found HRT erred in concluding M’s complaint was justified merely upon proof of sexual harassment without finding sexual discrimination. ISSUE/HELD Does sexual harassment in this case constitute sexual discrimination for the purposes of s. 10 of the BCHRC? i. Yes – M was entitled to quiet enjoyment of her apartment free from sexual harassment; this harassment falls within even a narrow construction of Janzen . ANALYSIS i. Key question was whether the SCC held in Janzen that all forms of sexual harassment constitute sexual discrimination, or if only some do (they stated: “certain forms of sexual harassment constitute sexual discrimination”). ii. The BCCA says that, even viewing it narrowly, it is binding authority that the harassment here is sexual discrimination. Enough that there is a hostile environment to establish the Moore test. iii. A female tenant is entitled to quiet enjoyment of her apartment free from sexual harassment in the same way a female EE is entitled to a workplace free from sexual harassment. iv. A complainant must show: a. Her sex/gender is a factor in the adverse treatment; b. Does not need to show uniform treatment of all members of her group. c. Evidence of differential treatment (male/female) is helpful but not required.

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Class 10B: Sexual Orientation Reading s: 1. School District No 44 (Vancouver) v Jubran , 2005 BCCA 201 at paras 1-21, 26-102. 2. Ontario (HRC) v Christian Horizons , 2010 ONSC 2105, paras 1-13, 24-106. CASE LAW: Sexual Orientation School District No 44 (North Vancouver) v Jubran , 2005 BCCA 2001 School District No 44 (North Vancouver) v Jubran, 2005 BCCA 2001 RATIO i. Discrimination based on actual, perceived and attributed, imputed characteristics are covered by HRL. a. Someone perceived to have a characteristic might not actually have it, but still be the subject of discrimination – subjective component of discrimination ( Quebec v Montreal ). b. Subjective component is basis for discrimination because effect of conduct on victim is the same as if they actually had the characteristic. ii. Intention to discriminate not required ( O’Malley ) – unintentional discrimination is still discrimination ( Meiorin ). iii. School harassment is harassment in the services context and schools are liable for students’ conduct ( Ross ). iv. Discrimination not invalidated by the fact that harassers themselves do not intend/think/know that the protected ground exists or is applicable to the complainant. 3 4 FACTS i. Straight kid subject to homophobic bullying in high school; before he graduated, he complained to the BC HRT for discrimination based on sexual orientation. None of his harassers actually believed he was gay, even though it was the basis for their bullying. ii. Judicial History: a. BCHRT concluded that he was discriminated against on the basis of sexual orientation and that it was irrelevant whether he was gay or his harassers believed he was gay. The board failed to provide an educational environment free from discriminatory harassment. b. Chambers Judge found claim didn’t fall within Code because it protects discrimination “because of the... sexual orientation of that person or class of persons”; Jubran was straight. ISSUE/HELD Does a person who complains of discrimination on the basis of sexual orientation (a) need to be gay; or (b) need to be perceived by their harassers to be gay? i. No – the subjective component of discrimination is enough (having the characteristic is not

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required per Quebec v Montreal ) and intention to discriminate is also not required ( O’Malley ). Is the school board responsible where the behavior of students violates the Code? i. Yes – it’s the statutory responsibility of the school board to maintain a non-discriminatory school environment for students, giving rise to the board’s duty respecting student conduct under the Code. ANALYSIS i. Can’t rely on a strict grammatical analysis of HRL because it’s quasi-constitutional legislation ( Quebec v Montreal ). Must interpret contextually, w/ a liberal and purposive construction ( Robichaud ). Not meant to punish but to provide relief for victim and remove discrimination ( O’Malley ). ii. Perception and intent: a. Subjective component is a basis for discrimination because the effect of the conduct on the victim is the same as if they actually had the characteristic; focuses on attitudes/prejudices imposing limits on a person’s dignity, respect and right to equality. Intention to discriminate is not required ( O’Malley ) and unintentional discrimination is still discrimination ( Meiorin ). iii. PF discrimination established: there was harassment based on the ground of sexual orientation ( Robichaud, Janzen ); it was demeaning, negatively affected his participation in high school life. iv. School board liable based on Ross – statutory responsibility of Board is to maintain a non- discriminatory school environment; the board failed to discharge its burden of demonstrating it accommodated Jubran to the point of undue hardship. Ontario (HRC) v Christian Horizons , 2010 ONSC 2105 Ontario (HRC) v Christian Horizons, 2010 ONSC 2105 RATIO i. Test for BFOQ Defence: a. 1) Is it a religious institution? b. 2) Is it engaged in serving similarly identified persons? c. 3) Is religious adherence a BFOQ because of the nature of the employment? ii. BFOQ justification for religious organizations is open to religious organizations, even if providing services to general public, if it is done as part of the org’s religious mandate. iii. BFOQ requires turning mind to the reasonable necessity of the qualification/policy as it relates to the actual tasks of the individual working for the organization. FACTS i. CH was an evangelical organization serving persons w/ developmental disabilities; introduced Lifestyle and Morality Statement into its contracts stating it rejected “homosexual relationships.” ii. The complainant was employed as a support worker by CH. She filed a complaint alleging that she was discriminated against on the basis of sexual orientation and exposed to a poisoned work environment after revealing to co-workers that she was in a same-sex relationship. iii. Judicial History: a. ON HRT found CH couldn’t benefit from s. 24(1)(a) of the HRC because it wasn’t primarily engaged in serving the interests of evangelical Christians but instead was serving the interests of people w/ developmental disabilities (i.e. broader public sector). In alternative, found that CH hadn’t satisfied the BFOR requirement. ISSUE/HELD Was protection under s. 24(1)(a) open to CH? i. Yes – CH viewed providing services to all of the needy without discrimination as part of its religious mandate, so they were engaged in serving the interests of persons identified by their creed.

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Was BFOR satisfied? 3 5 i. No – CH never turned its mind to the reasonable necessity of the qualification as it related to the performance of the actual tasks of the support worker; since they weren’t actively engaged in promoting evangelicalism, and services were provided to people of all/no faith, it wasn’t justified. Remedy? i. Require CH to develop a policy and provide training for its EEs and managers targeting discrimination on the basis of sexual orientation. ii. Original order to cease imposing LMS as condition of employment is overbroad; only necessary to delete the reference to same-sex relationships. ANALYSIS i. To determine whether a service falls under the s. 24(1) (a) exception of the ON HRC, must look at the purpose of the association and the nature of the activity engaged in by the religious organization to determine if it’s a fundamentally religious activity. ii. BFOR wasn’t satisfied because CH never turned its mind to the reasonable necessity of the LMS; the qualification wasn’t actually related to the activities she was undertaking. Class 11A: Marital/Family Status Reading s: 1. B v Ontario (HRC) , 2002 SCC 66 at paras 1-10, 35-end. 2. Canada (AG) v Johnstone , 2014 FCA 110 at paras 1-14, 35, 53- 128. 3. Tanner v Gambler First Nation , 2015 CHRT 19 at paras 1-16, 21-39. Class Notes Statisti cs 1. Couples living with at least one child = 51.1% in 2016 (56.7% in 2001). 2. 21.3% of couples live common law. 3. 0.9% of couples living in same-sex relationships. 4. 19.2% of children part of a lone- parent family. Statutory Protections 5. AHRA ss. 3-9, 44 – 6% FS + <1% MS claims in 2017-2018. 6. CHRA ss. 3 –

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12% FS + 5% MS claims in 2017-2018. 7. NB protects marital status only; NWT adds “family affiliation”; QB protects civil status. Internal Protections 8. ICESCR , article 10. 9. ICCPR , articles 17, 23, 24. 10. CEDAW , articles 11(2)(c)(d), 16. CASE LAW: Marital and Family Status B v Ontario (HRC) , 2002 SCC 66 B v Ontario (HRC), 2002 SCC 66 RATIO i. Family and marital status includes both absolute and relative status of a complainant. a. Absolute = a married person, a father. b. Relative = married to person X, father of person Y. FACTS i. Respondent was dismissed from his employment because of the identity of his wife and daughter and argued that this amounted to discrimination on the basis of marital and family status. ii. His bosses were his wife’s brothers and uncles to his daughter. His daughter accused one uncle of molesting her as a child; after respondent’s wife confronted that uncle, respondent was fired. iii. Judicial History: a. ON HRC Board of Inquiry found that dismissal was marital & family status discrimination. b. Ont Div Ct reversed HRC’s findings. c. ONCA allowed appeal and remitted to BOI. 3 6 ISSUE/HELD Do the grounds of “marital/family status” include situations where adverse distinction is based on the particular identity of the complainant’s spouse/family member? i. Yes – includes both absolute and relative status. ANALYSIS i. Adopting a broad meaning of family/marital status is supported by words of statute, principles of interpretation, and existing jurisprudence. Also in line with broad goal of anti-discrimination statutes to prevent drawing negative distinction based on irrelevant personal characteristics. ii. Discrimination can be established even if there’s nobody similar to the claimant experiencing the same unfair treatment. Sufficient to show differential treatment on the basis of an irrelevant personal characteristic that is an enumerated ground. Canada (AG) v Johnstone , 2014 FCA 110 Canada (AG) v Johnstone, 2014 FCA 110 RATIO i. Family status includes childcare and other

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parental obligations engaging legal responsibilities. ii. Test to make out PF case for workplace discrimination on the ground of family status resulting from childcare obligations: a. 1) Child is under person’s care and supervision. b. 2) Childcare obligation engages person’s legal responsibility (not personal choice); c. 3) Person made reasonable efforts to meet those obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; d. 4) The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. FACTS i. Johnstone’s employer, CBSA, wouldn’t accommodate her childcare obligations and allow her to work full-time on a modified schedule; however, CBSA had accommodated other EEs with medical issues or religious constraints on a full-time basis. Refused to accommodate her on full-time basis as it claimed it had no legal obligation to do so. ISSUE/HELD Did the HRT err by concluding family status includes childcare obligations? i. No – family status includes childcare obligations; the protected ground covers only parental obligations engaging the parent’s legal duty toward the child and not personal choices. ANALYSIS i. HR legislation must be given broad interpretation to ensure that the stated objects and purposes are fulfilled; must be interpreted in a flexible manner ( Quebec v Montreal ); its quasi-constitutional nature means it needs to be broadly interpreted to advance underlying policy concerns ( Robichaud, Berg ). ii. Childcare obligations contemplated under family status must be immutable or constructively immutable – i.e. those forming integral component of legal relationship between parent and child. iii. Cannot trivialize HRL by protecting personal family choices – e.g. dance classes, hockey tournaments. Tanner v Gambler First Nation , 2015 CHRT 19 at paras 1- 16, 21-39. Tanner v Gambler First Nation, 2015 CHRT 19 RATIO i. Ancestry is not technically covered under the CHRA, but is encompassed by the grounds of “race,” “national or ethnic origin,” and “family status” in line with liberal and broad interpretation of CHRA. ii. Differences in wording between provinces shouldn’t obscure the “essentially similar” purpose of HRL and thus should be applied to protect rights broadly ( Berg ). iii. In light of the ICEFRD , Canadian human rights statutes should be interpreted as possessing similar scope. FACTS i. Tanner was excluded from running for Chief because of her ancestry. ISSUE/HELD Is Tanner barred from bringing a claim on the basis of ancestry? i. No – “ancestry” is encompassed by the grounds in CHRA and in applying a broad and liberal approach to the statute, in line with other jurisdictions that do explicitly name ancestry as a ground. ANALYSIS i. As above.

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Class 11B: Source of Income and Social Condition Reading s: 1. Miller – 409205 Alberta Ltd v Alberta (HRCC) , 2002 ABQB 681 3 7 2. NWT (WCB) v Mercer , 2014 NWTCA 1 at paras 1-21, 27-44 3. Radek v Henderson Development (Canada) Ltd , 2005 BCHRT 302 at paras 463-487 Statutory Framework Statutory Protections: • AHRA – “source of income,” ss. 3-9, 44(n); <1% claims in 2017- 2018. o Also NL, NS, NU, PEI, YK. • ON: “receipt of public assistance” • NWT, NB, QB: “social condition” • MB: “social disadvantage” • CHRA – n/a despite recommendations. International Protections: • International Covenant on Economic, Social and Cultural Rights . Class Notes Statistic s: • Persons in low income after tax – 8.8%. • LICO for single person, before tax, in large city = $23,298. o Also NL, NS, NU, PEI, YK.

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What if someone has no income at all? • Perceptions and stereotypes drawn on the basis that an individual lacks a source of income could be fit under protected grounds due to discriminatory perception, like in Quebec v Montreal . • Alternatively, could take a Jubrand approach where it doesn’t matter if there is a source of income at all – all that matters is that the discrimination is based on the source of income. • Argue that a broad and purposive approach to “source of income” also includes a lack of source of income. Multiple grounds of discrimination • Under s. 3.1 of the CHRA, can explicitly raise multiple grounds of discrimination. • Under the AHRA, it is accepted practice to raise as many grounds are as relevant in the case. Considering intersectionality problems • See the following: o CHRA s. 3.1 o CEDAW arts 11(2), GR 28 para 18 o UNDRIP art 44 o Convention on the Rights of Persons with Disabilities, ss. 6, 7 CASE LAW: Source of Income and Social Condition Miller – 409205 Alberta Ltd v Alberta (Human Rights & Citizenship Commission) , 2002 ABQB 681 Miller – 409205 Alberta Ltd v Alberta (Human Rights & Citizenship Commission), 2002 ABQB 681 RATIO i. Things that provide economic benefits should be included within source of income. ii. Rental subsidy is a source of income under the AHRA. FACTS i. Miller was a renter; there was evidence that his landlord wanted him out. Evidence showed that other tenants were not subject to the same rent increase he was, landlord also refused to sign the subsidy agreement that would provide him with the ongoing subsidies he needed to pay rent. ISSUE/HELD Was there discrimination based on source of income? i. Yes – his rental subsidy was part of income and part of his adverse treatment. So, source of income was a factor in his adverse treatment and prima facie discrimination is established. 3 8

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ANALYSIS i. Court applied PF test for discrimination and found that he suffered adverse treatment: higher rent plus failure to sign the subsidy agreement. The landlord claimed this was all about Miller’s cats and had nothing to do with the fact that he was on AISH. ii. The Court said, even so, the landlord’s behavior was in part due to Miller’s source of income – the landlord knew our ought to have known the failure to sign the agreement would have the impact it did on Miller. His source of income was used to disadvantage him, and thus was a factor in the adverse treatment he received from his landlord. NWT (WCB) v Mercer , 2014 NWTCA 1 NWT (WCB) v Mercer, 2014 NWTCA 1 RATIO i. Social condition includes seasonal workers, an identifiable group based on their source of income. FACTS i. Under the NWT’s WCA legislation, Mercer (a seasonal worker) was entitled to less compensation than permanent workers were entitled to receive under the regime. He made a complaint to the HRC that he suffered discrimination on the basis of social condition. ISSUE/HELD Was Mercer discriminated against on the basis of his social condition, which includes his source of income? i. Yes – because he was a seasonal worker, he was part of an identifiable group on the basis of social condition. ANALYSIS i. Seasonal workers have particular characteristics linked to high unemployment, lower education levels, and higher levels of poverty. ii. Mercer can be used to rely on a broad definition of source of income, to include workers who are identifiable by their low levels of unemployment/education/etc. You would want to argue that, even though the NWT protects social condition, this case was in the context of source of income and under that umbrella consider lack of education, economic disadvantage, etc. Radek v Henderson Development (Canada) Ltd , 2005 BCHRT 302 Radek v Henderson Development (Canada) Ltd, 2005 BCHRT 302 RATIO i. Intersectional analysis is important! Must consider all grounds together instead of parsing them out. ii. Systemic and circumstantial evidence can be sufficient to lead to systemic remedies and a finding of discrimination. iii. To consider whether differential treatment has occurred, can hypothesize about how events would have unfolded if the person didn’t have the grounds (i.e. white instead of black) ( Johnson , Radek ). FACTS i. Radek is a middle-aged Aboriginal woman with a disability – she is “multiply disadvantaged on a number of grounds protected by the Code.” ii. Radek and a friend went to a shopping mall; they were closely followed by a security guard. Radek asked him why he was following them; he kicked them out for allegedly causing a disturbance. iii. She filed an HR complaint and brought lots of evidence showing systemic discrimination and claimed that she was personally discriminated against on the basis of race and disability . ISSUE/HELD Was there intersectional discrimination against Radek? i. Yes – systemic and circumstantial evidence was sufficient to lead to systemic remedies and a

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finding of discrimination against the mall. Remedies? i. $15k for injury to dignity; compensation for expert report. ii. Systemic remedies – post signs saying all people were welcome; anti-discrimination security training. ANALYSIS i. Radek was multiply disadvantaged on a number of grounds protected by the Code, and these grounds CANNOT BE SEPARATED AND PARSED ON AN INDIVIDUAL BASIS – they all play a factor in how she was treated. Intersectionality looks at compound discrimination. ii. The HRT says that if you take a whole-person view toward the complainant, you need to take into account economic disadvantage as well (even though not a protected ground under BC HRL). iii. BC HRT found that there was a continued practice of discrimination against Aboriginal people and people who were poor; looked at notion of intersectionality and said that in Radek’s circumstances, must look at how all the grounds intersected and combined to create unique discrimination. iv. The fact that she had a limp fed into stereotypes about Aboriginal people and intoxication; the security guard looked at intersectional elements of her grounds and stereotyped her. v. Can prove by indirect and circumstantial evidence and evidence of systemic discrimination – otherwise would be almost impossible to prove with direct evidence. 3 9 Radek also includes a restatement of principles for discrimination: 1. The prohibited ground(s) need not be the sole or major factor leading to the discriminatory conduct; just a factor. 2. There is no need to establish an intention to discriminate; look instead to effect of actions on complainant. 3. Prohibited ground(s) don’t have to be the cause of the conduct, it’s enough to be a factor. 4. No need for direct evidence of discrimination – it will more often be proven by circumstantial evidence/inference. 5. Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices. Envirocon Environmental Services, ULC v Suen , 2019 BCCA 46 Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46 RATIO i. There is a divergence in the case law regarding family status – AB courts are following the Johnstone approach, while BC courts are following the stricter approach in Campbell River . FACTS i. Suen was fired when, shortly after the birth of his first child, he refused to accept an out-of-province assignment requiring him to be away for several months. Employer sought to dismiss a complaint of family status discrimination on a preliminary basis. ISSUE/HELD Was there family status discrimination? i. No – could not prove serious interference with a substantial parental or other family duty or obligation (following Campbell River ). ANALYSIS i. Keep this case in mind if you practice in BC. ii. Demonstrates divergent approach to childcare in case

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law. Class 12: Disability and Gender Identity Reading s: 1. Quebec v Montreal , 2000 SCC 27 – here . 2. Council of Canadians with Disabilities v VIA Rail Canada Inc , paras 119-135, 145-229 – here . 3. Moore v BC , paras 26-71 – here . 4. Kavanagh v Canada (AG) , 2001 Canlii 8496 (CHRT) paras 1-47, 140-200 5. McMahon v Wilkinson , 2015 HRTO 1019 paras 1-6, 45, 49-end – here Statutory Framework Statutory Protections: 1. AHRA ss. 3-9, 44(1). o Note that there’s no explicit mention of addiction under disability in the Alberta legislation, but case law establishes that it is covered. 2. CHRA ss. 3(1); 25. 3. Ontarians with Disabilities Act, 2001 , SO 2001 c 32. Class Notes Statistic s: • 13.7% of Canadians identify themselves as having a disability – 2012. o 7.2% mobility; 3.9% mental/psychological; 2.3% learning. Personal Choice: Factum of the United Nurses of Alberta in Stewart • Addressed the fact that drug addiction is often treated as a choice on the part of the person with the addiction. They argue it’s inconsistent to give fewer protections to people with addictions on the basis of the choices they’re perceived to make. • They compare this to: o Going skiing while impaired and becoming paraplegic; o Not losing weight and remaining obese; o Not prioritizing mental health, requiring medical leave; o To use alcohol and drugs and becoming addicted, but then failing to seek

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treatment. 4 0 Stewart v Elk Valley Coal Corp , 2017 SCC 30 at paras 22, 39: • The nature of the disability at issue – i.e. addiction – doesn’t change the legal principles to be applied. • It can’t be assumed the Stewart’s addiction diminished his ability to comply with the terms of the Policy. In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. • Whether a protected characteristic is a factor in the adverse impact must be assessed on a case-by- case basis. Drug Testing Cases Often Include Perceived Disability • You would have to frame it around the employer’s perception that you have limitations in your ability to do your job. • Big gap in Alberta is we have no privacy protections in our human rights legislation. CASE LAW: Disability and Gender Identity Quebec v Montreal , 2000 SCC 27 Quebec v Montreal, 2000 SCC 27 RATIO i. To establish the ground of disability/handicap, there is no requirement that the condition include the presence of functional limitations (e.g. Crohn’s disease). ii. There is a subjective component to discrimination on the ground of disability/handicap – it can include the perception of an ailment, as well as the actual existence of the disability (the social model of disability). FACTS i. City of Montreal refused to hire M as a gardener; CUM refused to hire H as a police officer. Reason was that pre-employment medical exam in both cases revealed anomaly of the spinal column. ii. T was dismissed because of having Crohn’s disease. iii. Medical evidence for all three showed they could perform the normal duties of the positions and they had no functional limitations; they filed complaints alleging discrimination on the basis of handicap. ISSUE/HELD How is “handicap” defined for the purpose of applying HRL? i. The liberal and purposive method of interpretation, along with the contextual approach & the way the word has been applied in other jurisdictions, support a broad definition that does not necessitate the presence of functional limitations – recognizing a subjective component of any discrimination based on this ground. ANALYSIS i. Requiring the word to mean a physical/mental anomaly resulting in physical limitations isn’t broad enough; limitations should not be required in keeping with a liberal and purposive interpretation

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of HRL and in light of the HRL’s context and objectives. ii. A handicap can be real or perceived – someone could suffer no limitations except those created by prejudice and stereotypes. As a result, must consider circumstances in which distinction is made. iii. This is the social model of disability. Council of Canadians with Disabilities v VIA Rail Canada Inc , 2007 SCC 15 Council of Canadians with Disabilities v VIA Rail Canada Inc, 2007 SCC 15 RATIO i. Meiorin analysis applies to physical barriers and disability cases. ii. General rules: a. There is a right for persons with disabilities to access the same services, goods and facilities. b. There is a duty to accommodate this right unless BFJ exists (e.g. s. 15, 15(g) of CHRA ). c. “Undue” is case-specific and depends on specific service provider/context. d. If a reasonable alternative exists, the standard is not bona fide ( Central Alberta Dairy Pool ). e. The service provider must show they’ve made every possible accommodation ( Grismer ). iii. Factors to consider in determining whether undue hardship is met: a. SP’s refusal to spend small proportion of total funds available to remedy barrier ( Eldridge ). b. Size of SP’s enterprise/economic conditions confronting it ( Chambly ). c. Substantial interference w/ business – some interference < HR ( Central Okanagan ). d. Capacity to recover costs ( Howard ). e. Availability of external funding, including tax deductions ( Brock ). f. Likelihood of costs of remedy affecting essential character of enterprise ( Quesnel ). 4 1 g. Whether affordable, accessibility enhancing alternatives were available ( South Portland ). FACTS i. VIA Rail cars were not accessible to wheelchair users, as required under agreement. Issues included not being able to use their own wheelchairs on trains, access to washrooms, and ability to bring service animals on board. ISSUE/HELD Was there PF discrimination? i. Yes – the trains were not accessible to wheelchair users. Could VIA justify its conduct under BFJ. i. No – failed the Meiorin test. ANALYSIS i. Under Meiorin , a discriminatory standard may be justified on the balance of probabilities. Can only be justified if it’s impossible to accommodate the person without imposing undue hardship on the person responsible for the barrier (BFJ). “Undue” is case-specific. ii. The scope of the duty to accommodate under s. 15 of the CHRA depends on the nature, legitimacy and strength of competing interests. iii. Personal wheelchair users are physically and psychologically more independent when they’re able to remain in their own wheelchairs designed to meet their specific needs (instead of being required to use the on-board train wheelchairs which require them to be helped into the chairs, etc). iv. Using personal chairs minimizes physical risks and humiliation from transfers into alternative seating. v. Being forced to rely on others for assistance gives rise to human error, inconvenience, delays, affronts to human dignity and pride, cost, uncertainty, etc. Important not to lessen wheelchair users’ level of independence; independent access to the same comfort, dignity, safety and security

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as those without physical limitations is a fundamental human right for persons who use wheelchairs. Moore v BC (Education) , 2012 SCC 61 Moore v BC (Education), 2012 SCC 61 RATIO i. Special education is not a service – it is the means by which the service of education is delivered. Accommodation is the means by which equal (equitable) access is provided; it is not an “ancillary” service but instead the manner by which meaningful access to the benefit is sought. ii. Defining service as “special education” leads to a separate but equal approach. iii. To show discrimination, only have to show barriers to access, not that the barriers were arbitrary or unjustified! That comes in at the justification stage. FACTS i. Kid with severe dyslexia; special program cancelled by school board. ISSUE/HELD What does equal access to benefits mean? i. It means meaningful access to the general kind of benefit – avoid “separate but equal” approach! ANALYSIS i. Note that the SCC found that there was no basis for systemic remedies in this case; it was brought by an individual and it was fundamentally individual in nature and said, since Meiorin , should take a more unified approach to remedies. ii. Practices which are neutral on their face but have an adverse impact based on prohibited grounds will be subject to the requirement to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodations for those who can’t meet them ( Meiorin/Grismer ). iii. Big barrier to justification was the fact that the district hadn’t looked at any alternatives and even more discretionary programs had been preserved. Class 13: Guest Lecture – Residential Tenancies and Discrimination Major Themes: • Mental disabilities & evictions. • Structural barriers to HR, equality and access to justice are unique in the context of mental disability. Barriers to Justice • These residential tenancies concerns are rarely heard by Human Rights Tribunals. • There are no reported decisions in 8 out of 13 jurisdictions; Alberta is unusual as every mental disability + residential tenancy case must go to Court. The cases covered in this case are the only published decisions that exist.

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• Overturning RTDRS decisions is difficult: 4 2 o (1) Need an error of law; o (2) Very expensive. Disadvanta ge • SCC has acknowledged that persons with mental disabilities have historic disadvantage – discrimination, social exclusion, stigmatization. • Stereotypes – a lot of behaviours involve muttering, shouting for no reason – stereotyping causes these behaviours to be read as dangerous. • MDs are common, largely invisible, and episodic. • Stigma makes people afraid or reluctant to expose the problem; sometimes the person cannot identify that they have a disability. Housing First Movement • Housing is extremely important for persons with MDs who need to maintain stability and close contact with support framework and doctors. • The housing first movement says that we should always solve housing before any other MD problems. Hoardin g • Hoarding is a mental disability. • Prevalence is 2-6% of the population, and yet Provincial Court sees almost no cases. • 440k renters in Alberta = approximately 26k hoarders at most. Where are these cases? These cases – MC and AK, Beaverbone and Tran – underlie how important it is to have mental health courts who specialize in remedying these types of issues. Class 14: Race, Colour, Ancestry, Origin, Religion Readin gs Reading

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s: 1. AHRA ss. 3-9, 44. 2. CHRA ss. 3, 25. 3. Peel Law Association v Pieters , paras 79-136. 4. Quebec v Bombardier , paras 70-107. 5. Simpson v Oil City Hospitality , 2012 AHRC 8. 6. Brothers v Black Educators’ Association , 2013 CanLII 92697 (NS HRC) paras 1-25, 73-92. 7. Tanner v Gambler First Nation , supra . 8. O’Malley, review. 9. Webber Academy, review . Statutory Framework Alberta Human Rights Act Interpretatio n 44 (1) In this Act, (m) “religious beliefs” includes native spirituality; AHRA ss. 3-9, 44(1) (m): • Race, religious beliefs, colour, ancestry, place of origin. Note that the AHRA explicitly includes native religious and spiritual beliefs under s. 44(1)(m). Canadian Human Rights Act 4 3 Multiple grounds of discrimination 3.1 For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds. CHRA ss. 3(1), 25: • Race, national or ethnic origin, colour, religion. CERD, especially articles 1, 2, 3, 5; see also UNDRIP. • The first convention in that category (1966).

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• Take a look at the articles – includes definition of racial discrimination, the fact that the parties to the convention condemn racial discrimination and undertake to eliminate racial discrimination. Particular condemnation against racial segregation and apartheid, and the equal right not to be discriminated against on the basis of race when it comes to other civil, political, social and economic rights. Class Notes: Statistics Statisti cs • Race, colour, ancestry, origin: o In 2016, 22.3% of Canada’s population identified as visible minorities, and 21.9% were immigrants. o In 2016, 6.2% of the total Canadian population identify has having Aboriginal identity (4.4% First Nations, 1.7% Metis and 0.2% Inuit). o Complaints: ▪ Race/colour: 9%, ancestry/origin: 8% (AHRC, 2017- 2018). ▪ Race: 18%, national/ethnic origin: 19%, colour: 11% (CHRC, 2017). • Religion: o In 2011, 67.3% report affiliation with Christian religion; 3.2% Muslim; 1.5% Hindu; 1.4% Sikj, 1.1 % Buddhist; and 1.0% Jewish. CASE LAW: Race, Colour, Ancestry, Origin, Religion Peel Law Association v Pieters , 2013 ONCA 396 Peel Law Association v Pieters, 2013 ONCA 396 RATIO i. It’s appropriate to take judicial notice of racial prejudice in cases like Peel – as long as it is being used to ground an already-established finding of racial prejudice. ii. Social science evidence can deepen understanding of interactions and help in adjudication. FACTS i. Black articling students’ IDs checked at courthouse library. ISSUE/HELD ANALYSIS i. The applicants had to satisfy the burden of proof by establishing on the balance of probabilities that discrimination had occurred. ii. Social science evidence could be considered, like in Radek : a. In Radek , the court recognized social science evidence as persuasive in determining whether discrimination has occurred. Per the court in Parks , racial stereotyping is usually the result of subtle unconscious beliefs, biases and prejudices; some people subconsciously operate on the basis of racial stereotypes. b. As a result, did not err here by referring to social science evidence ( Nassiah ), especially as it

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was brought in after finding was already made that the respondent’s decision to question the applicants involved their race and colour as a factor. c. Social science can deepen the understanding of interactions and help in adjudication. iii. Per Radek : a. There is no need to establish direct evidence of discrimination; it can be proven by circumstantial evidence and inference (especially as most people are rarely directly racist); b. Racial stereotyping is usually the result of subtly unconscious beliefs, biases and prejudice. Quebec v Bombardier , 2015 SCC 39 4 4 Quebec v Bombardier, 2015 SCC 39 RATIO i. FACTS i. Bombardier decision to deny Mr. Latif’s request for training under his Canadian license was based solely on the fact that he had not received security clearance from the USA DOJ to receive training under his US license. ISSUE/HELD Was discrimination made out? i. No – there was no direct evidence for the real reason for the decision (no reasons provided by US DOJ) and circumstantial evidence was not enough. ANALYSIS i. The Commission had to show that Bombardier’s decision was discriminatory by establishing on a balance of probabilities that there was a connection between the decision and Latif’s ethnic or national origin. ii. In this case, Bombardier’s decision to deny Mr. Latif’s request for training was based solely on DOJ’s refusal to issue him a security clearance. Proof of a connection between the US’s decision and a prohibited ground of discrimination would have satisfied the requirements of the second element of the test – but the Commission didn’t adduce enough evidence to show that Latif’s ethnic or national origin played any role in the refusal. iii. Problem was – the parties didn’t know why the DOJ refused to issue him a security clearance; the Commission failed to adduce direct evidence and circumstantial evidence was insufficient in this case. Simpson v Oil City Hospitality Inc , 2012 AHRC 8 Simpson v Oil City Hospitality Inc, 2012 AHRC 8 RATIO i. FACTS i. Simpson was denied entry into a club – doorman said it was because of a tip about Asian gangs and as a result they weren’t admitting Asians that night. Simpson was refused along with 3 other men; he offered to let the doorman search him for weapons but he refused. ii. Nothing about the men – aside from their race, apparently – would have suggested any gang affiliation. ISSUE/HELD Did Oil City Hospitality discriminate against Simpson contrary to s. 4 of the AHRC? i. Yes! ii. Damages awarded included general damages – which were appropriate because the complainant suffered embarrassment, humiliation and mental anguish as a result of the discrimination; goal is to provide redress to complainant and encourage respect for principles in AHRA. iii. Further

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remedies included management/staff participation in AHRC educational program; establishing human rights policy; post sign saying establishment welcomes patrons of all races. ANALYSIS i. It was no defence that another half-Asian person was allowed in; that person dealt with a different doorman, he was not obviously of Asian descent, and other obviously-Asian-looking people were refused entry because of their race. Neither was the presence of alleged gang members in the area justification for the discrimination. ii. The respondents’ conduct violated a fundamental principle of Alberta public policy that all persons are equal in dignity, rights and responsibilities regardless of race ( AHRA ). Violating this impairs the freedom and dignity of persons in Alberta. Brothers v Black Educators’ Association , 2013 CanLII 92697 (NS HRC) Brothers v Black Educators’ Association, 2013 CanLII 924697 race / colour / age RATIO i. It is not necessary for a claimant to prove that discrimination was the only or dominant reason for an employer’s behavior – just that it was a factor. ii. Unconscious, or purposely-concealed, discrimination can resist direct proof – no need to prove what specific thoughts were in the respondent’s head ( Pieters ); the inference of discrimination must only be shown to be more probable than not. iii. “Colour” is different from race – refers to visible skin colour, classification of people based on shade. Particularly difficult for bi-racial people who face colourism from both POC and white people. FACTS i. Rachel Brothers was employed as a regional educator; was of mixed-race background, had some issues in the course of her employment. Ended up being in a meeting where her termination was 4 5 discussed, and the evidence showed that she was being undermined by one of the colleagues who was passed over for the job that she got. ii. According to Brothers, she was not black enough to be employed by the Black Educators’ Association. ISSUE/HELD Was Brothers subject to discrimination? i. Yes – on the basis of colour (but not on the basis of race). ANALYSIS i. Discrimination based on colour is distinct from that based on race; the difference is rooted in ongoing issues regarding classifying people based on apparent skin colour. ii. Discrimination based on colour is rooted in slavery and anti-miscegenation laws; there is a long history of people trying to “pass” due to the discrimination they faced based on colour. iii. Bi-racial people may experience adverse treatment based on colour from both historically-dominant and historically-oppressed communities. iv. Discrimination in employment means that a barrier stands between a person’s ability and their ability to demonstrate it – equality in employment means that no one is denied opportunities for reasons that have nothing to do with inherent ability. v. Her skin colour was a factor in her treatment: a. There is difficulty for bi-racial persons because depending on the intent of the respondent, the bi-racial person may be uncertain about whether the statement refers to racial purity or connectedness. Tanner v Gambler First Nation , 2015 CHRT 19

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Tanner v Gambler First Nation, 2015 CHRT 19 RATIO i. Ancestry is not covered by the CHRA – but it is technically covered by the intersection of race, ethnic origin, and family status. FACTS i. Tanner wanted to run for Chief position but was refused based on new elections code prohibiting non-descendants of John Falcon Tanner from running. ISSUE/HELD Is ancestry covered by the CHRA? i. Not explicitly in the CHRA – but it is a concept covered by the bases of race, ethnic origin and family status under the Canadian Act. ANALYSIS i. The Commission’s position is that – since “race,” “national or ethnic origin” and “family status” are not defined by the CHRA – a broad and liberal interpretation as mandated by the SCC supports the inclusion of ancestry under those grounds. Furthermore: a. Other jurisdictions explicitly include it; b. When interpreting HRL in a purposive manner, differences in wording between provinces shouldn’t obscure the similar purposes of provisions unless there is clear legislative intent to do so ( Berg ); c. Interpreting the CHRA in a way that excludes ancestry would mean that people could be discriminated against on the basis of ancestry in some jurisdictions and not others – contrary to the purposes of the Act. ii. Ancestry can fall within the ambit of race, national or ethnic origin, or family status because: a. In jurisdictions where it’s included, it falls alongside race and colour; b. Canadian HR statutes should be interpreted as possessing similar scope; It has been found to fall within family status in other cases like Schaap and Mossop . iii. Ultimately ancestry is a concept which forms part of all three of the grounds of race, national or ethnic origin, and family status and is protected by the CHRA. Class 15: Human Rights, Indigenous Peoples and Reconciliation Readin gs Readin gs 1. Mary Ellen Turpel, “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” 2. Indigenous Law Research Unit Case Note: Human Rights in Indigenous (Gitxsan) Law 3. An Act to Amend the CHRA , SC 2008, c 30 s 1: here 4. Tanner v Gambler First Nation at paras 84-106 – here 4 6 5. First Nations Child and Family Caring Socity of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs

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Canada) : o 2016 CHRT 2 at paras 1-13, 21-31, 83-87, 110-113, 255, 305-306, 315-328, 341-342, 346-347, 351- 352, 379-467. o 2018 CHRT 4 at paras 1-15, 407-454. Statutory Framework Alberta Human Rights Act AHRA ss. 3-9, 44 1. Race, religious beliefs (incl. specifically Aboriginal religious beliefs), colour, ancestry, place of origin. Canadian Human Rights Act CHRA ss. 3(1), 25 1. Doesn’t include ancestry. 2. Race, national or ethnic origin, colour, religion. 3. Repeal of s. 67 – “Nothing in this Act affects any provision of the Indian Act or any provision made under/pursuant to it.” 4. Bill C-21 – ss. 1.1 and 2.2 5. Complaints against Reserves/Bands/Councils = 5% in 2017 o Despite feds’ attempts to encourage participation and complaints after s. 67 was repealed, it appears that complaints are decreasing rather than increasing. Now Repealed: section 67 of CHRA 1. Was interpreted broadly. Generally under HR, defences to discriminatory conduct should be interpreted narrowly (while rights should be interpreted broadly) – taking purposive approach. 2. What’s the legal effect of repeal? o Opens up ability for Indigenous people to bring complaints against feds and own gov’t. o Claims for meaningful access to similar services (e.g. like in Moore ). An Act to Amend the CHRA, 2008 • Section 67 of the CHRA shielded decisions or actions by First Nation Band Councils and the Government of Canada made under or pursuant to the Indian Act from complaints. • The revised legislation means that First Nations individuals who are registered Indians and members of Bands, or individuals residing or working on reserves, can make complaints of discrimination to the Canadian Human Rights Commission relating to decisions or actions arising from or pursuant to the Indian Act . • Under Amendment 1.2: When assessing complaints under the CHRA against a First Nation government, including a band council, tribal council, or governing authority operating or administering programs and services

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under the Indian Act , the CHRA must be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality. So – gender equality is an over-arching principle in this Act because of the way the inheritance of Indian Status ( Lovelace, McIvor, Andrews and Matson in which SCC said you can’t use CHRA to directly challenge legislation but also showed that there is ongoing discrimination on the basis of gender inequality). International Protections 1. CERD o Used to help interpret CHRA to show that it included protections around ancestry in TANNER 2. UNDRIP o Arts 1-4, 44, but also see 46.1 o Not binding, but Canada has said that it is committed to implementing the provisions as if they are binding. o Article 1 – recognizes collective and individual rights to human rights under Un Dec and int’l HRL. o Article 2 – equal protection provision; right to be free from discrimination. o Article 3 – right to self-determination; note that section 35 protects the right to self-determination . 4 7 o Article 46.1 – limitation clause that says nothing in the declaration should be interpreted as to impair the sovereignty of any state that has adopted this declaration. All principles still subject to state sovereignty allowing Canada to make arguments that the right of self-determination has to be seen through lens of Canada’s overarching sovereignty. 3. CERD Committee Report on Canada 2017 o Found a number of areas in which Canada is not doing a good job to comply with its international obligations. READINGS: THEORY Mary-Ellen Turpel: “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” Key Notes: • Sensitivity to cultural differences in HR analysis is essential for understanding Aboriginal rights in Canadian law and for analyzing the relationship between Aboriginal peoples and Confederation. • The Charter and conception of rights at Canadian law is culturally-situated, and not universal or progressive insofar as they affect Aboriginal peoples. Considerations and Challenges:

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• Problem w/ using “master’s language and conceptual apparatus to dismantle the master’s house” – how do those sensitive to cultural difference explain difference when no language to use except that of predominant culture/legal system? • While ss. 25 and 27 are supposed to take a culturally-sensitive mode of analysis, any consideration of cultural differences will inevitably be formulated within the predetermined mode of reasoning central to Anglo-American legal discourse. They try to address “otherness” from the predominant perspective (e.g. rights claims or claims against the state). • Arguments for multiculturalism are “particularly offensive” because they presume differences to be “minority” matters that are manageable, interpretively, from within the majority-conceived scheme of the Charter . Multiculturalis m: • While Canada “pins multiculturalism on its chest” dominant Euro culture continues to set the terms of tolerance. • To be sensitive, courts would have to allow for the fact that an entirely different conceptual framework may apply, and that the judiciary are not capable of knowing or reconciling differences. • There must be sensitivity to the relativity of cultural understandings. Aboriginal Rights and Law 1. The collective and communal basis of Aboriginal life doesn’t have a parallel to individual rights in European traditions – the conceptions of law are based in duty to the Creator and duties to each other. 2. The European rights paradigm (legal or political or civil property rights) is a historically- and culturally-specific mechanism for the resolution of disputes and the allocation of resources which is different from the procedures used in Aboriginal cultures. There are many differences between/amongst Aboriginal cultural systems. Indigenous Law Research Unit Case Note: Human Rights in Indigenous (Gitxsan) Law Overvie w: • A Gitxsan woman brought a claim with the CHRT and successfully argued that she was discriminated against on the basis of gender by her former employer, a Gitxsan organization. While recognition of her wrongful treatment according to Canadian law was important, her major concern was recognition that the behaviour was also wrong according to Gitxsan law. • The CHRT agreed and adjourned for 1 year for the woman, her kin, her employer, and others could explore how Gitxsan law would apply in cases such as hers. Intent was to engage in an exploration of Gitxsan law and its application to similar cases. Backgroun d: • Woman holds a Chiefly name within Gitxsan society; within decentralized Gitxsan society, a Chief’s authority is their daxgyet , which enables the Chief to maintain their position, role and prerogatives associated with their name (e.g. access to land, resources, etc.).

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• A Chief’s own bad behaviour, or disrespectful behaviour toward her that remains unaddressed, can undermine her daxgyet and cause shame and diminishment of her authority in the Feast Hall (public political, legal and economic assembly). Key Differences Between Gitxsan and Canadian Law: 4 8 • Canadian law is primarily concerned w/ protection of the woman’s human rights, while Gitxsan law emphasizes the obligations both owed to her and owed by her to others. o i.e. she must be able to fulfill her chiefly duty to her kin and others in the community/Feast Hall; she has distinct legal obligations to others and others owe distinct legal obligations to her. • It is difficult but not impossible to correlate HR with her daxgyet – Gitxsan law includes individual and collective human rights, and people are accountable to uphold these rights within the social and kinship system rather than to a centralized state. Daxgyet can be conceptualized as a human right. The Question: • The legal question according to Gitxsan law could be: o “Does behaviour, such as the employer’s, potentially cause the diminishment of a female Chief’s daxgyet?” • Would need to be assessed along the lines of: o Whether a similarly-placed Gitxsan woman would be caused embarrassment; o Whether the public actions of the employer would cause shame to her kinship (House) group; o Whether doubt might be raised about her trustworthiness and chiefly capacity; and o What remedial measures might be available including compensation. CASE NOTES: Human Rights, Indigenous Peoples and Reconciliation Tanner v Gambler First Nation , 2015 CHRT 19 paras 84-106 Tanner v Gambler First Nation, 2015 CHRT 19 ancestry – national/ethnic origin – family status RATIO i. Under Bill C-21, Indigenous People’s customary and traditional practices are protected. Can apply 1.1 or 1.2 at step 3 of the Meiorin/Grismer BFJ test. As a threshold matter, first apply the test from Francis and Shotclose to determine if there is a custom or tradition: a. Is there a practice? b. Is it generally acceptable to members of the band? And c. Is there broad consensus? ii. Use of s. 35 requires application of the Sparrow test. FACTS i. Sharon Tanner, member of GFN through marriage,

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wanted to run for position of Chief in the Band Council Election. She was a member of another FN in MB, but because of the provisions of the Indian Act her own status changed because of her marriage. ii. The GFN Election Code provided that a person could only run for Chief if they were a blood relative of John Falcon Tanner, an original treaty signatory. She brought a claim of discrimination under ancestry (under grounds of race, national/ethnic origin, and family status). iii. CHRT agreed that a broad reading of those grounds could include ancestry. ISSUE/HELD Was discrimination made out? i. Yes – BFJ not satisfied. ANALYSIS i. The respondents tried to argue that ss. 1.1 and 1.2 of Bill C-21 under step 3 of the Meiorin/Grismer test. ii. Where there is a dispute regarding custom, the onus is on the party who relies on the custom to: a. Establish its existence and elements; and i. Demonstrate that it is supported by a broad consensus of Band members ( Francis ). iii. To determine whether there is a custom/tradition, must include ( Francis, Shotclose ): a. 1) Practices for the choices of a council. i. May be established through repetitive acts in time, or a single act (like adopting an electoral code). b. 2) Practices which are generally acceptable to members of the band. i. Must reflect manifestation of the will – e.g. “of those interested in rules for determining the electoral process of band council membership to be bound by the rule of practice.” c. 3) Practices must be based on “broad consensus.” i. Must be firmly established and consistently and conscientiously followed by a majority of the community; would exclude sporadic behaviours. iv. In this case, there was no custom found – of the Nation’s 256 members, only 4 or 5 were non- bloodline; it wasn’t surprising that no non-bloodline descendants served as Chief. While there may be 4 9 a practice of having Chiefs that are bloodline, it may simply be due to demographics and not because of any broad consensus. v. Election law was found to be a service, but wasn’t argued Andrews & Matson should apply even though it’s a direct attack on legislation ( Gwinner , which allows direct challenge on legislation in AB). First Nations Child and Family Caring Society of Canada et al v AG of Canada (for the Minister of Indian and Northern Affairs Canada) , 2016 CHRT 2 and 2018 CHRT 4 First Nations Child and Family Caring Society of Canada et al v AG of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 RATIO i. See key principles below. FACTS i. Case concerned with how the past and current child welfare practices in FN communities on reserves across Canada have impacted/continue to impact FN kids, their families and communities. ii. At issue was activities of Indian and Northern Affairs Canada (INAC/AANDC) managing the FN Child and Family Services Program (FNCFS) under which CFS were provided on-reserve and in the

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Yukon. iii. Complainants (Caring Society) alleged pursuant to s. 5 of the CHRA that the AANDC discriminates in providing CFS to FN on reserve and in the Yukon on the basis of Race and/or national and ethnic origin. In particular – inequitable and insufficient funding for services by AANDC. ISSUE/HELD Was there discrimination in the provision of services? i. Yes! ANALYSIS i. Best interests of the child is paramount in providing CFS. ii. Establishing PF discrimination in this case based on the Moore test: a. Race and national origin are prohibited grounds under s. 3 of the CHRA, no dispute that FN have these characteristics; b. Requires complainants to establish AANDC is actually involved in the provision of a service per s. 5 of CHRA; c. Must show that prohibited ground is a factor in the discriminatory treatment; no direct evidence or proof of intent required ( Bombardier ). Key Principles Explored in Caring Society Substantive Equality from Caring Society i. The purpose of HRL is to give effect to substantive equality – all individuals should have an opportunity equal to other individuals (CHRA s. 2). It is not about treating everyone the same (formal equality) because that can cause further inequality ( Andrews ). ii. Substantive equality can require positive steps to ensure disadvantaged groups benefit equally from services offered to the general public ( Eldridge, Andrews ). iii. Must analyze in purposive manner taking into account full social, political and legal context of the claim – for Aboriginal peoples this includes legacy of stereotyping and prejudice through colonialism, displacement and residential schools ( Caring Society, Lovelace ). iv. Services must not perpetuate historical disadvantage! ( Caring Society ). International Human Rights Commitments v. To form part of Canadian law, international treaties need national legislative implementation unless they codify norms of customary international law already found in Canadian domestic law ( Caring Society ). vi. However, becoming party to a treaty or covenant means a country is adhering to the contents of it – it’s a declaration that its national legislation will reflect its international commitments ( Caring Society ). vii. As a result, int’l law is relevant in interpreting Canadian domestic HR law scope and content ( Caring Society ), viii. Should look at decisions/recommendations of HR bodies to interpret scope/content of domestic law in light of international law ( Sask Fed Labour ). Chart er

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i. Charter should be presumed to provide protection at least as great as afforded by similar provisions in HRL/int’l HR docs that Canada has ratified – that’s because Parliament and provincial legislatures are presumed to respect the principles of international law ( Baker ). 5 0 Class 16: Areas of Discrimination – Employment, Drug and Alcohol Testing, Other Issues Readin gs Reading s: • Alberta (HRCC) v Kellogg Brown & Root (Canada) Company , 2007 ABCA 426. • Stewart v Elk Valley Coal Corporation at paras 48-57, 124- 145. • Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd , 2013 SCC 34 (headnote). • Chow v Mobil Oil Canada , 1999 ABQB 1026. CASE LAW: Employment, Drug and Alcohol Testing, Other Issues Alberta (Human Rights and Citizenship Commission) v Kellogg Brown & Root (Canada) Company , 2007 ABCA 426 Alberta (Human Rights and Citizenship Commission) v Kellogg Brown & Root (Canada) Company, 2007 ABCA 426 RATIO i. Possible to be discriminated against for perceived disability (addiction) as in Quebec v Montreal – but not found here. ii. Cannot consider whether a policy discriminates a group of persons generally unless the complaint is brought that way – if only arguing individual discrimination, court won’t consider it. iii. Split in case law – ABCA declines to extend HRL to “situations resulting in placing the lives of others at risk.” FACTS i. Kellogg appealed the Chambers Judge’s decision that Chiasson suffered discrimination under the AHRA based on KBR’s perception that he had a drug addiction. KBR’s policy required new hires to pass a post-offer/pre-employment drug test – he failed (note that the test results weren’t received until a week after he started working). He was fired. ii. Chiasson claimed that the firing was based on his drug results based on which KBR treated him as though he was perceived to have a drug addiction (he admitted to not being addicted but just a recreational user).

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ISSUE/HELD Did the Chambers Judge err? i. Yes! – erred in finding that KBR perceived Chiasson to be suffering from a drug addiction. ANALYSIS i. The Human Rights panel held that since he was not addicted, no actual disability was demonstrated. Further, because he was employed in a safety-sensitive position, there was no perceived disability (otherwise they would not have assigned him to that work). They did however find that the drug testing was prima facie discriminatory and would have failed to totally accommodate ( Meiorin ). ii. Chambers judge found that HRP was correct about actual disability but erred re perceived disability, because the effect of the policy was to treat recreational cannabis users as if they were addicted. She found that the zero-tolerance policy did not accommodate for BFOR. iii. Analysis: a. The only way in which the policy could be discriminatory against casual weed users if is the effect of the policy is to perceive anyone testing positive as drug addicted (thus = disabled) and to impose penalties or differential treatment on them based on perceived disability. b. ABCA says that this policy is aimed at the actual effects suffered by recreational users, and not the perceived effects suffered by cannabis addicts. This does not lead to conclusion that there is an underlying mistaken perception that casual users are addicts. c. The court deems this a LEGITIMATE PRESUMPTION based in safety, not discrimination, and that “extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic” (para 36). iv. Does it discriminate against drug addicted persons generally? a. MAYBE – but it wasn’t argued here, and s. 20 of the Act does not result in a general complaint automatically arising every time a complaint is lodged. b. Because Chiasson only argued personal discrimination, not discrimination claim on behalf of anyone else, they decline to deal with it. Stewart v Elk Valley Coal Corporation , paras 48-57, 124-145 5 1 Stewart v Elk Valley Coal Corp, paras 48-57, 124-145 RATIO i. The purpose of the policy has no place in the Moore test – that doesn’t come in until justification! ii. Don’t use language of arbitrary discrimination in test – puts unfair burden on claimant (unless you are the respondent, in which case you want that language to creep in). FACTS i. Same old facts of Stewart. ISSUE/HELD Is dismissal of EE following positive drug test post-accident constitute discrimination on basis of disability? i. Majority – NO. Dissent – YES! ii. Properly should have been PDF per dissent, and not a BFOR. ANALYSIS i. The best approach for the complainant is to always argue the Moore test religiously – but be prepared that counsel for the respondent is going to be bringing in things like the purpose of the ER’s actions at the stage of proving PFD.

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Communications, Energy and Paperworkers Union of Canada Local 30 v Irving Pulp & Paper Ltd , 2013 SCC 34 – headnote Local 30 v Irving Pulp & Paper Ltd, 2013 SCC 34 RATIO i. Alcohol testing of unionized EEs is only permitted where there is reasonable cause to believe the EE: a. Is impaired on duty; b. Was involved in a workplace accident; or c. Is returning to work after treatment. ii. Unionized & non-unionized EEs are in different positions re drug and alcohol testing. FACTS i. Union brought a grievance challenging the mandatory random alcohol testing aspect of a policy on alcohol and drug use that the ER, Irving, unilaterally implemented at a paper mill. Under the policy, 10% of EEs in safety-sensitive positions were to be randomly selected for unannounced breathalyzer testing over a year. A positive test for alcohol attracted significant disciplinary action, incl. dismissal. ISSUE/HELD Is the policy discriminatory? i. Yes! ANALYSIS i. Unilaterally imposing a policy of mandatory random testing for EEs in a dangerous workplaces is an unjustified affront to the dignity and privacy of EEs unless there is evidence of enhanced risks – such as evidence of a general problem with substance abuse in the workplace. ii. It’s a proportionality problem, and risk will never be an automatic justification for unilateral imposition of testing. Chow v Mobil Oil Canada , 1999 ABQB 1026 Chow v Mobil Oil Canada, 1999 ABQB 1026 RATIO i. Can validly contract out of past HR claims (release) – but not future ones. ii. Whether valid and enforceable depends on following criteria: a. The actual language of the release as to what’s included, explicitly/implicitly. b. Existence of unconscionability – e.g. inequality of bargaining power, unfair settlement. c. Undue influence – e.g. coercion, abuse of power, compulsion. d. Existence/absence of quality, reliable independent legal advice; e. Existence of duress – e.g. more than mere stress/unhappiness, factors of financial need, etc.; f. Knowledge of party of their rights under the Act or that complaint is contemplated; g. Other considerations: lack of capacity, timing, mutual mistake, forgery, fraud, etc. FACTS i. Chow was employed at MO as a legal secretary then assistant; got pregnant, job was reclassified and she didn’t get hired into that position or her old position. Before she could bring an HR claim forward, she was given a severance package with 17 wks compensation for any aspect of the failure to hire her that was related to her pregnancy. ii. She was asked to sign a release freeing MO from any actions, claims, and demands that she ever had or might ever have for the employment relationship. Lawyer told her she could sign because she can’t sign away her human rights – was this the case? Q of law referred to ABQB under s. 31 AHRA . ISSUE/HELD Can you release a current or future complaint from an alleged past act of discrimination under the AHRA? i. Yes – you can contract out of bringing a future complaint based on past acts, but you cannot contract out of bringing complaints based on acts which may arise in the future and whether it is enforceable has to be examined in the context. 5

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2 ANALYSIS i. HRL is to be interpreted broadly and liberally – but defences are to be interpreted narrowly . Long- standing principle in HRL case law that people can’t contract out of HR but that deals with future HR claims – you can possibly contract out of past violations of HR that could be compensated by a severance agreement. Class 17: Areas of Discrimination – Notices and Publications Readin gs Reading s: 1. Alberta Human Rights Act, supra, s 3, http://canlii.ca/t/81xx 2. Canadian Human Rights Act, supra, s 12, http://canlii.ca/t/7vh5 3. Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378, paras 1-27, 54-87, 138-160, http://canlii.ca/t/214pq 4. Lund v. Boissoin, 2012 ABCA 300, http://canlii.ca/t/ft82h 5. Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, http://canlii.ca/t/fw8x4 Statutory Framework *** Note that internet comments are technically federal jurisdiction, but that section of the CHRA has been repealed *** Alberta Human Rights Act s. 3 Discrimination re publications and notices (s. 3): • No person shall publish, issue, or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that: o (a) indicates discrimination or an intention to discriminate against a person or class of persons; or o (b) is likely to expose a person or a class of persons to hatred or contempt... ▪ ... because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons. • No interference with free expression of opinion on any subject ( s. 3(2) AHRA ). • Doesn’t apply to the following as long at they’re not otherwise derogatory, offensive or improper ( s. 3(3) AHRA ): o Displaying a notice/sign/symbol to identify facilities customarily used by one gender ( s. 3(3)(a) ). o Displays or publications by or on behalf of an organization indicating a membership qualification

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of the organization ( s. 3(3) (b) ): ▪ That’s composed exclusively or primarily of persons having the same political/religious beliefs, ancestry, or place of origin; and is not operated for profit. o Display or publication of a form of application or an advertisement that may be used, circulated or published pursuant to section 8(2) . Key Elements of s. 3 of the AHRA: 1. Must be a publication or notice by a person; 2. Must be published, issued or displayed before the public; 3. That either: a. Indicates discrimination or an intention to discriminate against a person or class of persons; or b. Is likely to expose a person or class of persons to hatred or contempt. 5 3 Canadian Human Rights Act s. 12 Publication of Discriminatory Notices, etc (s. 12): • It is a discriminatory practice to publish or display before the public or to cause to be published or displayed before the public any notice, sign, symbol, emblem, or other representation that: o (a) expresses or implies discrimination or an intention to discriminate; or o (b) incites or is calculated to incite others to discriminate... ▪ ... if the discrimination expressed or implied, intended to be expressed or implied or incited or calculated to be incited would otherwise, if engaged in, be a discriminatory practice under s. 5-11 or s. 14 . CLASS NOTES: International and Domestic Law CERD Report on Canada (2017 Recommendations):

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• Enact legislation in compliance with requirements of article 4 (combating racist hate speech) in all jurisdictions; • Take steps to prevent racist hate crimes against all ethnic and minority groups, migrants and indigenous peoples; • Facilitate reporting by victims, ensure effective investigation, prosecution and sanction of racist hate crimes; • Track, maintain data on number of reported racist hate crimes, prosecutions, convictions, sentences, compensation; • Investigate, address reasons for 61% increase in racist hate crimes reported against Muslims, rise of Islamophobia. Case law on application of provisions re hate speech: • No application to internet communications (federal jurisdiction, section of CHRA repealed) – Elmasry . • Not necessary to link to other protected areas – Elmasry, Boissoin . Note that if you’re faced with a situation like in Lund, could invoke both s. 3(1)(a) and s. 3(1)(b) – the letter is both indicating discrimination or intention to discriminate , as well as may be likely to expose a class of persons or person to hatred or contempt . CASE LAW: Notices and Publications Elmasry and Habib v Roger’s Publishing and MacQueen (No 4) , 2008 BCHRT paras 1-27, 54-87, 138-160 Elmasry and Habib v Roger’s Publishing and MacQueen (No 4), 2008 BCHRT paras 1-27, 54-87, 138-160 RATIO i. TEST for NOTICES AND PUBLICATIONS: Would a reasonable person, aware of the context and circumstances, view the expression as likely to expose person(s) to detestation, vilifaction on the bases of prohibited grounds? ( Elmasry ) a. “Hatred and contempt” per SCC in Taylor means ardent and extreme nature of feeling; unusually strong and deep-felt emotions of detestation, calumny and vilification. Must meet this level to override constitutional guarantee of FOE. b. “Likely to expose” per SCC in CJC means the communication is likely to increase the risk of manifestation of hateful or contemptuous behavior – assessed on reasonableness standard. ii. Test must be applied objectively, not based on subjective feeling of complainants. iii. Is it likely to expose others to hatred or contempt? Look at: a. Focus on the effect on persons who are subject, rather than intent of publisher; b. Objective test – would reasonable person aware of context view it as likely to expose?; c. Expert evidence may be required. iv. Contextual factors for deciding whether publication meets the test: a. Are we dealing w/ vulnerable target group? b. Degree to which publication on its face contains hateful

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words/reinforces stereotypes? c. Content and tone of message? d. Social and historical background of publication? e. Credibility likely to be accorded to publication? f. How the publication is presented? g. Publication true, or made as part of larger political debate? v. EXPERT EVIDENCE MAY BE REQUIRED. FACTS i. Elmasry and Habib filed a complaint on behalf of all Muslim residents of BC about an article published in MacLean’s Magazine which described the writer’s view that Muslims have global ambitions for world religious domination assisted by demographically outnumbering Western cultures & violence. 5 4 ii. The complaint alleged that the article exposes Muslims in BC to hatred and contempt on the basis of their religion – in breach of s. 7(1)(b) of the BC HRC . ISSUE/HELD Did the article breach the BC HRC? ii. No – the complainants failed to demonstrate that the article breached the Code as they failed to show it rises to the level of hatred and contempt as defined by the SCC. ANALYSIS i. HRTs balancing important rights: the right to live free of discrimination and the right to free speech. ii. There is no requirement to relate the notice to a field of protected activity (e.g. jobs, services), in keeping with large and liberal interpretation principles. iii. Key evidence was missing in this case regarding hatred and contempt – there was no evidence on the impact of language and stereotypes on readers, no expert called to identify writer’s use of words and their intended meaning/effect on recipients. No evidence on Islamophobia or how themes in the article might increase its prevalence. No evidence that publication was likely to expose others to hatred or contempt. Lund v Boissoin , 2012 ABCA 300 Lund v Boissoin, 2012 ABCA 300 RATIO i. Case specifically considers Notices under the AHRA. ii. Do not need to link s. 3(1)(b) to another part of the Act – e.g. employment – as it is a stand- alone provision against discrimination on protected grounds through notices and signs. iii. “Hatred or contempt” requires an EXTREME level of ill-will. iv. There is no requirement to show a causal link or proof of harm – requirement on complainant is only to show that it is LIKELY TO expose persons to hatred, not that it actually HAS exposed persons. v. Interpretation of s. 3(2) AHRA: a. Provides exemption for expressions of opinion; b. Essentially creates exemption for statements that truly express opinions. vi. Interpretation of s. 3(3) AHRA: a. Provides exemption for membership qualifications unless derogatory/offensive/improper. vii. Could potentially include oral statements at para 83. FACTS i. Boissoin wrote a letter to the editor re the wicked homosexual agenda to the Red Deer Advocate ; about two weeks later, a gay teenager was reportedly assaulted in downtown Red Deer for being gay. He stated that

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he didn’t feel safe after reading Boissoin’s statements and that the letter felt like encouragement for people to go out and stop the gay rights movement. ISSUE/HELD How does the notices section of the AHRA apply? i. General prohibition on discrimination through notices and publications; no need to link to another part of the act. However, this notice/publication did not rise to the level of hatred/contempt. ANALYSIS i. Per the Court of Appeal, the letter was “a polemic on a matter of public interest and does not qualify as reaching the extreme limits ... to expose persons to hatred or contempt” under the AHRA. ii. Must be considered in context – in free society, it is permissible to express opinions on the morality of others’ behavior, and can say that a person’s behavior is immoral. iii. The context here was a live public debate on the appropriateness of schools teaching kids about homosexuality. The letter contributed to an ongoing debate on matters of public interest, which is distinct from hate propaganda which serves no useful function and has no redeeming qualities. iv. Furthermore, statements of opinion are covered by the exception (but not purported statements of fact). The hate speech provisions are a prohibition on extreme forms of defamation. Saskatchewan v Whatcott , 2013 SCC 11 Saskatchewan v Whatcott, 2013 SCC 11 RATIO i. The test for hatred must be applied objectively and analyze whether: a. A reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred; b. Whether there is hatred – must be restricted to extreme manifestations of the emotion per SCC in Taylor . FACTS i. Complaints filed against Whatcott for flyers he distributed – Keep Homosexuality out of Saskatoon’s Public Schools! And Sodomites in our Public Schools. 5 5 ii. Tribunal found the fliers contravened the SHRC because they exposed persons to hatred and ridicule on the basis of their sexual orientation and held that s. 14 of the Code was a reasonable restriction on Whatcott’s rights to freedom of religion and expression under s. 2(a) and (b) of the Charter. ISSUE/HELD Did the fliers contravene the Code? i. Sort of – the ones that contained “hallmarks of hatred” contravened the Code; others were just merely offensive but didn’t meet high threshold. ANALYSIS i. The SCC applied the Taylor definition of “hatred” – limited to extreme manifestations (doesn’t include merely repugnant and offensive ones). ii. Hate speech provisions must be applied objectively asking whether a reasonable person, aware of the context and the circumstances, would view the expression as exposing the protected group to hatred. iii. Third step is to examine the likely effect of the expression on the subject – is it actually likely to expose them to hatred by

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others? Class 18: Human Rights Remedies Readin gs 1. Alberta Human Rights Act, supra, ss 32-34, http://canlii.ca/t/81xx 2. Canadian Human Rights Act, supra, ss 53- 57,http://canlii.ca/t/7vh5 3. Walsh v Mobil Oil Canada, 2013 ABCA 238, paras 1-67, 97-104, http://canlii.ca/t/fzhtx 4. Nova Scotia Human Rights Commission, Decision Approving Settlement Agreement, Halifax Association of Black Firefighters and Halifax Regional Municipality, https://humanrights.novascotia.ca/sites/default/files/Halifax %20Assn%20of%20Black%20Firefighters.pdf 5. Moore, supra, paras 55-71 6. Canadian Human Rights Commission v AG of Canada et al ( Mowatt ) 2011 SCC 53, http://canlii.ca/t/fnl47 Statutory Framework Alberta Human Rights Act ss. 32-34 A Human Rights Tribunal can (s. 32): • Dismiss the complaint (s. 32(1); • Make an order for the respondent to: o Cease the contravention (s. 32(1)(b)(i)); o Refrain from committing the same or similar contravention (s. 32(1)(b)(ii)); o Make available the rights/opportunities/privileges they denied contrary to the Act (s. 32(1)(b)(iii)); o Compensate the applicant for wages, lost income due to contravention (s. 32(1)(b)(ii) – i.e. special damages ; o Take any other action the tribunal considers proper to place the person dealt with contrary to the Act in the position they would have been in but for the contravention (s. 32(1) (b)(v)). ▪ This is where the power to award general damages for pain and suffering or loss of dignity comes from. ▪ NO CAP on general damages under the AHRA. Reconsideration (s. 33): • If there’s new evidence available that wasn’t available or for good reason wasn’t presented before the tribunal at first instance, parties can apply or tribunal on own motion can reconsider any matter with all powers under s. 32 .

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• Has to happen within 30 days of the first decision being rendered ( s. 33(2) ). Retroactive compensation limit (s. 34): • No settlement/compensation order can compensate the applicant for wages or lost income or expenses incurred more than two years before the date of the complaint. o But, as seen in Walsh , there is no prospective limit. Section 42 Offences: • No person shall hinder/obstruct/interfere with Commission in exercise of power/duty under the Act. • Where a person/corporation/agency contravenes this, they’re guilty of an offence and liable to a fine of max $10k. 5 6 Enforceability (s. 36): Orders are enforceable by filing w/ ABQB – that way, can get garnishment of wages etc. to enforce. While it is not explicitly specified, Alberta Tribunals probably do have the jurisdiction to order special programs, etc. Canadian Human Rights Act ss. 53-57 Dismissal (s. 53(1)): If a member or panel finds a complaint is not substantiated, can dismiss it (s. 53(1)). Orders for Substantiated Complaints (s. 53(2)): • If a complaint is substantiated, the member/panel can make an order requiring the respondent to: o Cease discriminatory practice & take measures to redress/prevent it from happening again (s. 53(2)(a)), including: ▪ Adoption of a special program, plan, arrangement under s. 16(1); ▪ Application for approval/implementation of a plan under s. 17; ▪ Special programs for people with disabilities. o Make available the rights/opportunities/privileges denied to the victim because of the practice at first reasonable occasion (s. 53(2)(b)). o Compensate victim for any/all wages they were deprived of and expenses incurred due to the practice (s. 53(2)(c)). o Compensate victim for costs of obtaining alternative goods/services/facilities or accommodation etc (s. 53(2)(d)); o Compensate the victim for amount not

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exceeding $20k for pain and suffering (s. 53(2)(e)); ▪ Cap under CHRA for general damages! None under AHRA. Special Compensation (s. 53(3)): Can order amount up to $20k if found respondent engaged in discrimination willfully/recklessly. Limitation (s. 54): • No order can include a term requiring removal of individual from an employment position accepted in good faith; • No order can require expulsion of an occupant of a premises/accommodation if they obtained in good faith. o So – can’t remove a bona fide tenant or EE when making a remedial order. Limitations of orders re employment equity (s. 54.1): • Can’t adopt special programs that adopt policies to get increased representation & goals/timelines for achievement. o Done in CNR – section was adopted after because now there is employment equity legislation so these programs no longer fall within jurisdiction of CHRC. Enforcement (s. 57): Orders can be filed with FC for purposes of enforcement. Class Notes: Overview of Remedies Granted in Case Law Big Principles: • Human rights legislation is remedial and not punitive ( Robichaud ). Employer/School Liability: • ERs are liable for discriminatory acts of EEs committed in course of employment ( Robichaud ). • Conduct of the ER is irrelevant to imposition of liability but can go to remedial consequences ( Robichaud ). o Because many remedies under HRL can only be provided by ER (e.g. reinstatement). o If they respond quickly and effectively, might be liable for lesser remedies. • Schools are similarly liable for discriminatory actions of students

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( Jubran ). Remedies Must be Logically Tied to Claim • Remedies cannot be too remote from the claim: o Systemic remedies require framing the complaint in systemic terms ( Moore ). o Individual complaints can have necessarily systemic consequences – even if a remedy appears individual, an order not to commit the discrimination in the future can be enough, and respondents will change behavior to prevent future claims ( Moore ). • The remedial order must be tailored to the finding of discrimination, and cannot be too general ( Christian Horizons ). o e.g. can’t order remedies involving religion when the claim is in gender discrimination. 5 7 Systemic Remedies • Systemic remedies require systemic framing of claim ( Moore ). • Note limit in CHRA s. 53(2)(1)(i); 54 – as applied in CNR/Action Travail. • A Human Rights Tribunal cannot amend a law itself but can order that the government cease applying the law and make benefits available: o Gwinner – AB government had to cease applying discriminatory law and make benefits available ; s. 1(1) of AHRA is primacy clause holding that AB laws are inoperative where conflicting with HRL (but no jurisdiction to amend). o Andrews v Matson – Direct attacks on legislation not allowed under CHRA. o Tanner v Gambler First Nation – Tribal laws potentially treated differently under CHRA; ordered to amend election law under CHRA despite Andrews . • Cases in which personal + systemic remedies were ordered: o Kavanagh – systemic remedies re policies were provided (CHRA). o Action Travail – systemic remedies re hiring (now barred by s. 54 CHRA). o Tanner v Gambler – order to amend election law. o Johnstone – family status case, Canada Border Services had to come up with accommodation policy. o Simpson v Oil City – bar had to put up signage saying people of all races welcome, training for staff, policy. Monetary Remedies • No power to order legal costs under CHRA!!! ( Mowat ). There is power to order costs under the AHRA, however ( Walsh ). • Awards must be adequate and appropriate ( Walsh ):

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o Goal of monetary remedies is to make complainant whole and deter future discrimination ( Walsh ). o Ordering costs/damages serves goal of preventing future discrimination through education/deterrence ( Walsh ). • Complainant has duty to mitigate and must show causal link (“but for”) between discrimination and injuries ( Walsh ). • Factors re general damages ( Walsh ): o Duration of discrimination; o Effect on complainant; o Willfulness of the respondent. • No cap in AB legislation for general damages ($20k cap under CHRA) but at the time of Simpson most awards were around $4k-$10k and it was extremely rare to see an award like in Simpson ($15k). • Factors influential in general damages ( Simpson ): o Time for tribunals in AB to revisit approach to general damages; lack of actual cap; o Need to look at the effect the discrimination has on the complainant; o Need to deter respondent; o Need to encourage respect for HR; o Any award must be enough of a hit to wallet that it’s not a license fee to discriminate. CASE LAW: Remedies in Human Rights Law Walsh v Mobil Oil Canada , 2013 ABCA 238 at paras 1- 67, 97-104 Walsh v Mobil Oil Canada, 2013 ABCA 238 at paras 1-67, 97-104 RATIO i. “But for” test applies to damages – victim must show causation between discrimination and injury. ii. To determine correct amount of costs ( Arunachalam ): a. Characterize the injury based on nature of discriminatory conduct (seriousness/duration); b. Recognize victim’s particular experience (emotional difficulties etc. could increase award). iii. Goal of remedy is to compensate victim for discriminatory conduct and put them back in original position ( Walsh ). iv. Victims have the duty to mitigate their losses ( Walsh, citing Holness ). FACTS i. Walsh wanted to become land rep; was discriminated against as compared to male employees in same position (had to provide own vehicle, harassment, working on probationary basis, etc.). ii. Filed claim that MO discriminated on basis of gender; later filed another claim on basis of retaliation. iii. At issue was assessing damages – AHRT ordered: a. $10k for discrimination (general damages – pain and suffering); b. $25k for retaliation; c. $473k for lost wages; d. Pension plan benefit loss; e. Special damages for cost of counselling expenses. 5 8 i. Altogether: $657k in damages. iv. She objected to cutting off lost income after the year 2000; but based on expert evidence heard at

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Tribunal level, it was appropriate to set this cut-off because she had been in a car accident which led to an inability to find new work & dependency on pain meds – no longer a causal link for losses. ISSUE/HELD How are damages appropriately determined here? i. It was appropriate to cut off at 2000 – there is a duty to mitigate & must be a causal connection. ANALYSIS i. Authority to provide remedies for discriminatory/retaliatory conduct falls under s. 32(1) (b) and 32(2)/34 of AHRA. ii. Base requirement is that awards must be adequate and appropriate: a. Goal is to put the party back in the position they would have enjoyed without the wrong. b. Principle of mitigation applies – victim must mitigate their own lost wages. c. However, take holistic look at after-effects of exposure to poisoned work environment on the victim’s duty to mitigate. d. Victim must show causation – but for the discrimination, the injury would not have occurred. iii. In this case, no statutory limit under AHRA for amount of general damages available; to measure appropriate amount, look at effect on complainant and willfulness of the discrimination. NS HRC BOI – Halifax Association of Black Firefighters and Halifax Regional Municipality (SETTLEMENT) Nova Scotia HRC – Halifax Association of Black Firefighters Settlement RATIO i. Example of restorative justice-oriented settlement. FACTS i. HABF alleged individual & systemic discrimination on the basis of race and colour against each of them individually and as a group by HRM w/r/t employment. ii. Parties came to settlement agreement including: a. Public apology from Chief of Fire Service acknowledging past wrongs and harms; b. Development of ADR and harm reduction based on restorative justice principles; c. Commitment by fire service leadership and firefighters to engage in spirit of respect & trust; d. Acceptance of public and institutional accountability for commitment to resolution. ISSUE/HELD Was the settlement acceptable to the BOI? ii. Yes – endorsed under the NS Act. ANALYSIS i. BOI endorsed the agreement noting that it commended the parties for coming to an agreement instead of litigating, in a process that demonstrates autonomy, personal and institutional responsibility, and a willingness to respect difference. ii. This is an example of a restorative settlement , including two main components: a. Acknowledgment/reparation of past harms including apology, compensation, commemoration and A2J acknowledgment ; and b. Building/supporting sustainable change including support, dispute resolution, policy, auditing, reporting, training, recruitment obligations, A2J commitments by HRC . ( Mowatt ) Canadian Human Rights Commission v AG of Canada et al , 2011 SCC 53 Mowatt – CHRC v AG of Canada et al, 2011 SCC 53 RATIO i. Can’t get a cost award under the CHRA (but explicitly can get a costs award under s. 32(2) of AHRA). FACTS i.

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Mowatt filed a complaint with CHRC alleging the Canadian Forces discriminated against her on the ground of sex contrary to the CHRA. ii. CHRT concluded that her complaint was substantiated in part, she was awarded $4k to compensate her for “suffering in respect of feelings or self-respect”; she applied for legal costs and the Tribunal decided it had the authority to order $47k in costs. ISSUE/HELD Does the CHRT have the jurisdiction to order legal costs? i. NO! – no authority is provided in the wording of the CHRA. ANALYSIS i. Whether the Tribunal has the authority to order costs is a Q of law within core function and expertise of the Tribunal (relates to interpretation and application of its enabling statute). ii. However, while ss. 53(2) (c) and (d) state that Tribunal can compensate victim for expenses, “costs” is a legal term of art and if Parliament intended to give this power, would have used this term. 5 9 Moore v BC (Education) , 2012 BSCC 61 at paras 55-71. Moore v BC (Education), 2012 BCSC 61 RATIO i. Remedies must flow from the claim – systemic remedies can only be provided if a systemic claim is pled; remedies cannot be too remote from the scope of the claim. FACTS i. HRT awarded Moore: a. Amount of tuition paid for his private school up to and including Grade 12; b. Half the costs incurred for his transportation to and from private school; c. $10k for injury to dignity, feelings, self-respect; d. That the province allocates funding and establish mechanisms to ensure accommodations for Severe Learning Disabilities students are appropriate and meet legislative goals/policies; e. That the School District establish mechanisms to ensure delivery of services to SLD students; f. That the Tribunal remain seized of the matter to oversee implementation of systemic orders . ISSUE/HELD What remedies were appropriate in Moore’s case? i. Personal remedies were fine – but systemic remedies were too remote from claim and struck down. ANALYSIS i. A practice is discriminatory whether it has an adverse impact on a single individual or systemically on several – only difference is number of persons disadvantaged ( Moore, Griggs ). ii. An individual remedy can have a systemic impact – e.g. in Grismer , ruling that he be given individual testing had remedial consequences for others in his situation. In that same way, finding that Jeff Moore individually suffered discrimination and was entitled to a personal remedy has broad remedial repercussions for how other kids w/ SLDs are educated. iii. However: THE REMEDY MUST FLOW FROM THE CLAIM – Jeff Moore was about to graduate, there was no need for the Tribunal to remain seized of the matter to satisfy his claim. No systemic claim was framed so systemic remedies were inappropriate.

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Ali_s Human Rights Law CAN - Winter 2019

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