Alberta Human Rights Information Service September 30, 2009 (Decisions summaries)
Recent panel and court decisions
The Commission has recently updated its website with the following panel decisions, including a panel decision related to a severance agreement:
Lori Harvey (Hamm) v. WWDI Wireless Inc. (August 19, 2009; Delano W. Tolley, Panel Chair)
Employment practices found to be discriminatory on the basis of gender/sexual harassment:
The complainant store manager alleged she was sexually harassed by her employer. The harassment took the form of unwanted touching, blowing kisses, and a hug, and on each occurrence the complainant moved away from the respondent. The complainant was terminated from employment after she complained of her employer's conduct in writing. After receiving the letter from the complainant, the respondent changed the locks to the business premises and sent a termination letter to the complainant. The termination letter was a continuation of the harassment, but in a different form. The letter also falsely accused her of misconduct on a number of issues, including contact with the RCMP.
The panel chair found that the respondent's actions constituted unwelcome conduct and sexual harassment. The respondent's action of changing the store locks overnight was clearly retaliatory and indicated that the complainant's fear of employment loss was valid, as supported by the dismissal letter and the false accusations contained therein. The panel awarded the complainant $5,000 in lost wages and $4,500 in damages for pain and suffering.
Jennifer Kohut v. North American Construction Group Inc. and North American Energy Partners Inc. (July 10, 2009; Beth Bryant, Panel Chair)
Severance agreement valid and enforceable and therefore the Commission has no jurisdiction to proceed with the complaint:
The complainant was employed as a safety advisor by the respondents. The complainant was sexually assaulted by an employee of another company at a company party. After the assault, the respondent transferred the complainant to another work site, and her employment was subsequently terminated a few months later. The complainant argued she was terminated in order to minimize the problems arising from her sexual assault. The respondent argued she was terminated because of her poor work performance.
The respondent provided the complainant with two termination letters, and the complainant initially refused to sign the release. The respondent told the complainant she had five days to sign the release, and she signed the release three weeks later, and then filed a human rights complaint. The complainant argued she signed the release while under duress due to financial pressures and from the trauma caused by her sexual assault.
The panel held that the complainant had the onus to prove the agreement was invalid, and that there was no evidence of undue influence, duress, unconscionability, or lack of capacity. The panel held that the Commission had no grounds to proceed with the complaint.
Elizabeth (Betty) Brawn v. Profile Seismic Ltd. (June 16, 2009; Diane Colley-Urquhart, Panel Chair)
Employment practices not found to be discriminatory on the basis of gender or age:
The complainant was employed by the respondent for approximately nine years with secretary, bookkeeping and accounting duties. The complainant's supervisor retired and was replaced by another supervisor, who, the complainant alleged, had a negative attitude towards the complainant because of her gender and age. The respondent gradually removed some of the complainant's duties, and the complainant's employment was terminated when she was 68 years old. She alleged the respondent discriminated against her on the basis of age and gender. She also alleged that the supervisor was antagonistic towards her, and made derogatory and abusive age-based and gender-based comments about her.
The respondent argued the complainant's employment was terminated because of her lack of cooperation in the workplace regarding the introduction of new technology, and because of her poor performance. The respondent also argued that any allegedly derogatory comments made regarding the complainant were made in private conversations and were not intended to be heard by the complainant.
The panel concluded the complainant was uncooperative in the workplace and her behaviour undermined the authority of her supervisor and prevented the respondent's attempts to introduce new technology into the workplace. While the complainant's supervisor's conduct and comments were poorly judged and unfortunate, there was insufficient evidence to show the complainant's employment was terminated because of her gender or age.
Important court decisions related to human rights:
Warman v. Lemire, 2009 CHRT 26 (Canadian Human Rights Tribunal, September 2, 2009)
Hate messages on the Internet not found to be discriminatory:
Richard Warman complained to the Canadian Human Rights Commission that Marc Lemire published hate messages over the Internet, in breach of section 13 of the Canadian Human Rights Act. Warman alleged that these messages discriminate against persons or groups of persons on the basis of their religion, race, colour, national or ethnic origin, and sexual orientation, because the matter exposes Italians, Mexicans, Puerto Ricans, Haitians, Francophones, Blacks, First Nation persons, East Asians, non-Whites, Jews, and homosexuals, to hatred or contempt.
Only one of the messages was found by the Tribunal to breach s. 13, holding material found in the AIDS Secrets article expressed unusually strong and deep-felt emotions of detestation and vilification towards homosexuals in particular. The Tribunal noted the article was rife with hyperbole and moral condemnation stating homosexuals, and Blacks to a lesser extent, were purveyors of a "killer" that was on the loose, agonizingly destroying the lives of American children and adults alike. The message used extreme language to vilify them and their lifestyles. They were portrayed as a powerful force that is conspiring to bring harm to others. Rather than using statistics and studies in a scientific manner, the article adopted an alarmist tone, which along with the above-mentioned characterizations, is likely to expose them to hatred or contempt. The Tribunal also found, however, that s.13 and ss. 43(1) and 54(1.1) are inconsistent with s. 2(b) of the Canadian Charter of Rights and Freedoms and that the restrictions imposed on the freedom of thought, belief, opinion, and expression are not a reasonable limit within the meaning of s. 1 of the Charter. The Tribunal found that a formal declaration of invalidity is not a remedy available to the Tribunal, and decided to refuse to apply the provisions and will not issue any remedial order.
Vilven v. Air Canada, 2009 CHRT 24 (Canadian Human Rights Tribunal, August 28, 2009)
Canadian Human Rights Tribunal finds mandatory retirement provisions were discriminatory:
Air Canada pilots George Vilven and Robert Kelly were forced to retire at age 60 years pursuant to mandatory retirement provisions in their collective agreement. They complained to the Canadian Human Rights Tribunal, arguing the mandatory retirement policy was discriminatory on the basis of age. Section 15(1)(c) of the Canadian Human Rights Act stated it was not discriminatory if an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual. Determining what was the "normal age of retirement" was based on the total number of positions within Canada that are similar to those occupied by the complainants. Determining what were "similar positions" required reference to pilots who fly aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace.
In refusing to apply s.15(1)(c) to this complaint, the Tribunal found that Air Canada, as a major employer in the industry, could effectively establish what would be a normal age of retirement for the majority of pilots in Canada. The Tribunal held Air Canada failed to show s. 15(1)(c) was a reasonable limit to the complainant's equality rights, and that Air Canada did not demonstrate the requirement that air crew employees retire at age 60 was a bona fide occupational requirement. The Tribunal further held eliminating the mandatory retirement policy would not create undue hardship for Air Canada. The Tribunal concluded the mandatory retirement provisions were discriminatory.
Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Supreme Court of Canada, July 24, 2009)
Supreme Court of Canada upheld Alberta government regulation requiring photo identification for obtaining driver's licence:
In May 2003, the Alberta government passed legislation requiring photo identification as part of the requirement for obtaining a driver's license. Members of the Wilson Hutterite Colony objected, since they believe that photographs taken of themselves violated the Bible's second commandment and this requirement breached their Charter right of freedom of religion. The Hutterite colony appealed to the Court of Queen's Bench, and the Court agreed that the law violated the freedom of religion guaranteed under the Charter. The Court of Appeal upheld the Court of Queen's Bench decision. The Government of Alberta appealed to the Supreme Court of Canada, and in a 4:3 majority, the Court found the requirement for photo identification was justified. The Court found the goal of setting up a system that minimizes the risk of identity theft associated with drivers' licences was a pressing and important public goal. The universal photo requirement was connected to this goal and did not limit freedom of religion more than required to achieve it. Finally, the negative impact on the freedom of religion of Colony members who wish to obtain licences did not outweigh the benefits associated with the universal photo requirement. The Court upheld the regulation as constitutional.
Orville Nichols v. M.J. and Saskatchewan Human Rights Commission, 2009 SKQB 299 (Saskatchewan Court of Queen's Bench, July 17, 2009)
Saskatchewan Human Rights Tribunal held that it is discriminatory for a marriage commissioner to refuse to perform same-sex marriage:
Orville Nichols, a marriage commissioner, appealed a Saskatchewan Human Rights Tribunal decision finding he discriminated on the basis of sexual orientation when he refused to perform and solemnize a marriage between a same-sex couple. Nichols argued he was justified in refusing to perform a same-sex marriage because of his personal religious beliefs and that the applicant for the same-sex marriage (M.J.) should have accommodated Nichols' religious beliefs by seeking another marriage commissioner.
The Saskatchewan Court of Queen's Bench agreed with the Tribunal's findings and conclusion and dismissed the appeal. The Court held Nichols, as a public official, was not permitted to consider his personal religious views when performing his public functions, and could not have his religious beliefs accommodated. The Court went on to say a marriage commissioner was required to make decisions regarding whether persons could be married according to law. There was nothing in the Saskatchewan Human Rights Code or Marriage Act that gave Nichols justification to refuse to perform and solemnize a same-sex marriage based upon Nichols' religious beliefs. Nichols, in his capacity as a marriage commissioner, acted as a government official who was not entitled to discriminate, regardless of his private beliefs.
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