Alberta Human Rights Information Service December 10, 2012

In this issue:

Human rights case law: Tribunal and court decisions

Commission news

Other human rights and diversity news

Alberta news

International news

Related publications and resources

HUMAN RIGHTS CASE LAW: TRIBUNAL AND COURT DECISIONS

1. Summaries of recent tribunal decisions released by the Commission

Morris v. Kingsway Asset Management Ltd. and Elsafadi 2012 AHRC 9 (CanLII) (October 25, 2012; Brenda Scragg, Tribunal Chair)
Demotion of employee after short-term disability leave and eventual firing of employee supports finding of discrimination on the basis of disability.
A property manager was found to have been discriminated against on the basis of her disability when she was demoted after returning from a short-term disability leave and then later fired. The tribunal held that the complainant's immediate demotion upon her return to work after stress leave required an explanation from the respondent. One of the respondents indicated that there was a shortage of work. In the face of tendered evidence of a job advertisement for the complainant's position appearing in the newspaper shortly after the complainant was fired, the tribunal indicated that this explanation was not credible. The tribunal found discrimination and awarded four months of lost wages plus general damages in the amount of $8,000.

Simpson v. Oil City Hospitality Inc., 1260055 Alberta Limited operating as Oil City Roadhouse, 2012 AHRC 8 (CanLII) (September 24, 2012; William D. McFetridge, QC, Tribunal Chair)
Tribunal awards large compensatory damages when individual denied admittance on the basis of race.
The
complainant alleged discrimination on the basis of race and ancestry when he was denied admittance to an Edmonton night club. The tribunal found that the evidence provided by witnesses for the complainant was consistent and credible. In holding that there was discrimination contrary to the Alberta Human Rights Act (the Act), the tribunal awarded a large amount of general damages and stated, "While any remedy must be awarded based on its individual merits, there appears to be no obvious reason why general damage awards in Alberta should be lower than they are in other jurisdictions." The tribunal also ordered the respondent to attend an educational seminar provided by the Alberta Human Rights Commission and to develop a written policy that addresses the requirements of the Act.

2. The Commission recently released other tribunal decisions:

  • Delorie Walsh v. Mobil Oil Canada Ltd. (Decision on Personal Expenses; November 7, 2012; Beth Bryant, Tribunal Chair)
  • Thomas Schulz v. Lethbridge Industries Limited (Decision on Costs; September 18, 2012; William D. McFetridge, QC, Tribunal Chair)

These tribunal decisions can be accessed free of charge through the Canadian Legal Information Institute (CanLII) website.

3. Important court decisions related to human rights

Moore v. British Columbia (Education), 2012 SCC 61 (Supreme Court of Canada, November 9, 2012)
Supreme Court of Canada confirms boy with severe dyslexia was discriminated against when the province failed to provide appropriate special education program.
The complainant, who suffered from severe dyslexia, argued the school district and the government failed to accommodate his disability in the provision of a service when the Province cancelled an education program providing one-on-one teaching, and did not provide a reasonable alternative.

The British Columbia Human Rights Tribunal had found discrimination and ordered broad remedies both to provide a remedy to the complainant and to address systemic discrimination against other students accessing special education programs. The Supreme Court of Canada emphasized that the proper comparator group was education generally, not special education. "To define special education as the service at issue also risks descending into a kind of 'separate but equal' approach . . . Comparing J only with other special needs students would mean that the District could cut all special needs programs and yet be immune from a claim of discrimination." [para 30]

The Court held that prima facie discrimination was established as it was clear that J had a disability, he suffered adverse impact with respect to the service, and his disability was a factor in the adverse impact. The Court acknowledged that the District's decision  to cancel the program was based on budgetary considerations. However, the District's position that the discrimination was justified was undermined because the District did not consider any other alternatives or other possible accommodations. Accordingly, the Court substantially upheld the tribunal decision but restricted the remedy to the complainant alone, stating that while evidence can be provided regarding systemic discrimination, if the complaint is not framed as such, the remedy should pertain only to the complainant.  

Lund v. Boissoin, 2012 ABCA 300 (Alberta Court of Appeal, October 17, 2012)
Alberta Court of Appeal upholds dismissal of human rights complaint under section 3 of Alberta human rights legislation. Legislation must be read expansively but context does not support that publication exposes persons to hatred and contempt.
Stephen Boissoin wrote a letter to the editor of the Red Deer Advocate with derogatory references to individuals who are gay ("the homosexual machine" etc). The Red Deer Advocate newspaper published the letter entitled "Homosexual Agenda Wicked." Dr. Darren Lund saw the article in the newspaper and filed a human rights complaint, stating that the letter contravened section 3 of the Human Rights, Citizenship and Multiculturalism Act (now named Alberta Human Rights Act) (the Act).

The complaint was ultimately heard by a human rights tribunal that held there was discrimination pursuant to the Act. A lower court overturned the tribunal's ruling and quashed the finding of discrimination. Dr. Lund appealed the lower court's decision to the Alberta Court of Appeal. The Alberta Court of Appeal dismissed the appeal, holding:

A contravention of section 3 does not require a demonstrated link to other discrimination under the Act: The letter must be read in context, and in context the wording of the letter does not meet the extreme standard of hatred set out in the decision of the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892, 75 DLR (4th) 577. The approach must be from the "perspective of a reasonable reader" who is aware of the context and circumstances of the letter's publication.
  • Section 3(2) is not a balancing section, but rather a complete exemption for opinions, but only for that expression that can be properly characterized as opinion.
  • The provisions dealing with publications are very unclear given that the legislature intended to expand these particular provisions in 1996. 
  • Wright v. College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267 (Alberta Court of Appeal, September 18, 2012)
    Alberta Court of Appeal indicates sanctioning of nurses with addictions who engaged in criminal behavior not prima facie discriminatory.
    The Alberta Court of Appeal addressed the decision of a professional conduct tribunal that dealt with the misconduct of nurses who were addicted to drugs, stole drugs and falsified records while working as nurses. The majority decision held that there was no reviewable error as it was reasonable for tribunals to have found "no prima facie discrimination" on the basis that the sanctions were related to criminal conduct and not disability. Further, the sanctions were not arbitrary or based on preconceived stereotypes. Berger (JA) dissented, however, emphasizing that the disability was inextricably linked to the conduct and sanction, and the failure to properly apply a human rights analysis constituted reviewable error. The appellant Wright has sought leave to the Supreme Court of Canada. 

    COMMISSION NEWS

    1. Commission releases 2011-2012 Annual Report
    The Commission has released its 2011-12 Annual Report. The report provides a summary of results achieved in the three areas of activity undertaken by the Commission: education and engagement, complaint settlement and resolution, and complaint adjudication. It also includes information about the legislative framework for the Commission, the legislative framework for the Human Rights Education and Multiculturalism Fund, biographies of the Members of the Commission, and listings of tribunal decisions made in 2011-12 and of judicial reviews of decisions made by the Chief of the Commission and Tribunals. Read the report.

    2. The Commission attended recent events: 

    • The Responsibility of the Employer and Employee in Accommodation:  The Commission's Senior Legal Counsel, Audrey Dean, presented at the Eleventh Annual Alberta Health & Safety Conference and Trade Fair, held on November 19 to 21, 2012 in Edmonton. The session, The Responsibility of the Employer and Employee in Accommodation, covered accommodation issues including the responsibility of the employer and employee, the employer's right to medical information and the employee's responsibility to provide medical indication, as well as recent safety-sensitive decisions from the courts and tribunals.

    • Presentations to Chiefs of Police: As part of an informal coalition with the Alberta Mental Health Patient Advocate Office and the Canadian Mental Health Association, Blair Mason, Chief of the Commission and Tribunals, along with Janice Ashcroft, Senior Legal Counsel, Office of the Chief of the Commission and Tribunals, and Shirley Heafey, Part-time Member of the Commission, met with members of the Calgary Police Service including the Deputy Chief of Police and Superintendent. They discussed the disclosure of non-criminal mental health information in police background checks. The group believes that there is a need for province-wide consistent and transparent guidelines regarding what information is released to minimize stigmatization of mental illness and any discriminatory treatment that may result due to the unnecessary release of this information.

      Ms. Ashcroft also presented to the Alberta Association of Chiefs of Police on November 14, 2012 in Edmonton. The group praised the work of many police departments across Alberta in the area of mental health including certain initiatives already in place relevant to the issue of releasing mental health information. The group requested to work collaboratively with the Association in the development of a set of province-wide disclosure and appeal guidelines. The Association was very receptive to the presentation.

    • Presentation to U of A law school students: Blair Mason, Chief of the Commission and Tribunals, Alberta Human Rights Commission, and Janice Ashcroft, Senior Legal Counsel, Office of the Chief of the Commission and Tribunals, spoke to students at a University of Alberta law school class about various human rights and administrative law issues on October 30, 2012. The Chief provided the students with important historical perspective, emphasizing that while many rights have been achieved, the students, through their legal training, could be at the forefront of a new human rights movement, which prioritizes the protection of the rights of vulnerable immigrant workers and Aboriginal people.   

    • Citizenship Ceremony: The Commission hosted a reception at a Citizenship Ceremony on October 17, 2012 in Edmonton during Citizenship Week. Senator Tommy Banks presided over the ceremony. Eighty newcomers received their Canadian citizenship and the Commission hosted a reception for about 180 people including family and relatives of the new Canadians. Geeta Bharadia, QC, Acting Chief of the Commission and Tribunals, Alberta Human Rights Commission, congratulated the new Canadians and she spoke about the rights and responsibilities of citizenship as well as what it means to be a Canadian citizen. Ms. Bharadia described her sense of accomplishment and pride when she obtained her citizenship many years ago. Ms. Bharadia also informed the new Canadians about the work of the Commission and the mandate of the Alberta Human Rights Act.

    • Lethbridge Peace Day Celebration: On September 21, 2012, the Lethbridge Network of the Canadian Coalition of Municipalities Against Racism and Discrimination (CCMARD), a team of government, nonprofit and business leaders from the City of Lethbridge, hosted a Peace Day celebration where Cam Stewart, Diversity Consultant, Alberta Human Rights Commission, brought greetings on behalf of the Commission's Chief of the Commission and Tribunals to more than 100 attendees. This event was held as part of International Peace Day, a day that is devoted to strengthening the ideals of peace, both within and among all nations and peoples. Citizens are encouraged to use this day as an opportunity to promote peaceful resolutions of conflicts and to honour a cessation of hostilities. The community of Lethbridge is actively working together to make positive, forward changes within their community. The team has been successful in bringing about policy change within the City of Lethbridge, which adopted the Building Bridges: A Welcoming and Inclusive Community Action Plan 2011-2021.

    3. Upcoming forum: Accommodating mental and physical disabilities in the workplace: The Commission, the Human Resources Institute of Alberta and the Edmonton Chamber of Commerce are offering a forum for employers to discuss potential challenges in accommodating employees with physical and mental disabilities. The forum takes place in Edmonton on January 30, 2013.

    Keynote speaker, Janice Ashcroft, Senior Legal Counsel, Office of the Chief of the Commission and Tribunals for the Alberta Human Rights Commission, will provide an overview of the duty to accommodate, including rights and responsibilities during all stages of the accommodation process. A panel of industry and agency experts will be available to address questions from the participants.

    To learn more about the forum, see Accommodating Mental and Physical Disabilities in the Workplace (PDF). You can register online at https://www.eply.com/accommodatingdisabilities. For more information, call Sherri Clark at 780-427-4533 in Edmonton. You can call toll-free from Alberta locations outside Edmonton. Registration is limited to 50 participants.

    4.
    Human Rights in the Workplace winter workshops: Three Human Rights in the Workplace public workshops are scheduled for winter 2013. The full-day workshops, intended for managers, supervisors, team leaders, human resource professionals, union leaders, and small business owners, will provide participants with:

    an overview of Alberta's human rights legislation,
  • information from the workshop module Duty to accommodate and
  • an understanding of harassment in the workplace and strategies to prevent such harassment.
  • The full-day workshops will also provide participants with an understanding of respectful and inclusive workplaces and strategies to create such a workplace.

    See the winter public workshop schedule for details.

    5. Human Rights Education and Multiculturalism Fund




    The Human Rights Education and Multiculturalism Fund (the Human Rights Fund) supports communities and organizations to make changes so that all Albertans can contribute to the economic, social and cultural life of the province without discrimination. The Human Rights Fund also provides financial support for outcome-based projects that support changes that build equitable and inclusive communities and organizations. Grant priorities are to:

    • foster equality and reduce discrimination,
    • remove organizational barriers that exclude groups protected under Alberta's human rights legislation and
    • increase community or organizational capacity to develop and sustain work in building equitable communities and inclusive organizations.

    When developing initiatives, organizations are encouraged to work with one of the Human Rights Fund consultants to develop projects that are viable and maximize the resources available. Please contact a consultant to discuss your ideas for projects that support any of the funding priorities. After consultation, an application for funding in the form of a Letter of Intent may be submitted by May 1, 2013 or October 1, 2013.

    Human rights and multiculturalism scholarship

    Students pursuing graduate studies in Canadian human rights or multiculturalism are invited to apply for the Alberta Award for the Study of Canadian Human Rights and Multiculturalism. This award encourages graduate studies that will create value for Albertans by promoting informed thinking about Canadian human rights, cultural diversity and multiculturalism. The award is made possible through the Human Rights Fund. There are two awards of $10,000 each - one for Master's level study and one for Doctoral level. The Master's level award honours Pardeep Gundara, one of Alberta's human rights champions, and is known as the Pardeep Singh Gundara Memorial Scholarship.The deadline for applications is February 1, 2013. Download the application form and read about past scholarship recipients.

    Recent scholarship recipients: Adam Carlson, a PhD student from the University of Alberta, received the Alberta Award for the Study of Canadian Human Rights and Multiculturalism. He will use the scholarship to further research on societal tolerance of injustice. Rebecca Taylor, a Master's student also from the University of Alberta, received the first Pardeep Singh Gundara Memorial Scholarship for her research into the Protection of Sexually Exploited Children Act. Read the information bulletin.

    6. Canadian Coalition of Municipalities Against Racism and Discrimination (CCMARD) update: Two more municipalities have recently joined the Canadian Coalition of Municipalities Against Racism and Discrimination (CCMARD). The cities of Burnaby, British Columbia and Hamilton, Ontario joined CCMARD, bringing the number of CCMARD members to 56. Read the List of Signatory Municipalities who have joined the Coalition. The Commission is a partner in the CCMARD initiative.

    PLEASE NOTE: In the following sections of the newsletter, we publish news and information provided by other organizations. We also link to other websites related to human rights and diversity. The Commission provides this information as a service and is not responsible for the content provided by other organizations on their websites or by other means. Please direct comments or inquiries regarding these organizations or their websites to the organization in question.

    OTHER HUMAN RIGHTS AND DIVERSITY NEWS 

    1. Significant dates

    Ukrainian Famine and Genocide (Holodomor) Memorial Day: On November 20, 2012, a ceremony was held at the Legislature to commemorate the fourth anniversary of Ukrainian Famine and Genocide (Holodomor) Memorial Day in Alberta and to honour the contributions the Ukrainian community has made and continues to make in Alberta. Holodomor was a famine in the Ukrainian Soviet Socialist Republic from 1932 to 1933, during which time millions of inhabitants died of starvation. On November 4, 2008, Bill 37, Ukrainian Famine and Genocide (Holodomor) Memorial Day Act, came into force, proclaiming every fourth Saturday in November a day of remembrance in Alberta. Bill 37 received the unanimous support of the Legislative Assembly. Read the news release.

    December 10 is Human Rights Day: December 10, 1948 was the day on which the Universal Declaration of Human Rights was signed by member nations of the United Nations. A Canadian, John Humphrey, was the primary author of the Declaration. The members of the UN hoped that the horrors of the recently ended war could be avoided if a universal code of human rights governed the behaviour of individuals and countries. Read more about Human Rights Day and Alberta events taking place to commemorate the day. 

    The Commission offers a flyer and poster called Celebrate All Year Round to remind Albertans of significant international, national and provincial days related to human rights and diversity. To order the flyer or poster, contact educationcommunityservices@gov.ab.ca or call 403-297-8407 in Calgary. Call toll-free from Alberta locations outside Calgary by first dialing 310-0000 then entering the 10-digit number.

    See the list of significant days on the Help Make a Difference website.

    Alberta news

    1. 
     Diversity and inclusion webpage: The City of Calgary website now offers a webpage that features an employee awareness campaign about diversity and inclusion.

    2. Anti-homophobic website launched: The Institute for Sexual Minorities Studies and Services, University of Alberta, launched an anti-homophobic website. From the website: "This website is designed as a social mirror to show the prevalence of casual homophobia in our society."  

    International news

    1. New guidelines on human rights education: The Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) presented two new sets of guidelines on human rights education at the OSCE's annual Human Dimension Implementation Meeting in Warsaw on September 24, 2012. From the OSCE press release: " The guidelines were produced to promote effective human rights education and to support OSCE participating States in the implementation of their human dimension commitments in this area."

    The guidelines include:

    Guidelines on Human Rights Education for Law Enforcement Officials
  • Guidelines on Human Rights Education for Secondary School Systems 
  • RELATED PUBLICATIONS AND RESOURCES

    1. Freedom of expression book release: The Sheldon Chumir Foundation for Ethics in Leadership recently launched the book, Deal with it! Free Speech, Ethics and the Law in Canada. From the Sheldon Chumir Foundation news release: "Deal with it! Free Speech, Ethics and the Law in Canada includes essays by civil libertarians, human rights experts, journalists and academics from across the country. The essays probe recent controversies concerning the tension between freedom of expression and anti-discrimination (human rights) laws and broader issues concerning the ethics of offensive speech." The book is available to download.


    Subscribe to Alberta Human Rights Information Service

    Stop your subscription to Alberta Human Rights Information Service

    Back issues of Alberta Human Rights Information Service

     


    The Alberta Human Rights Commission is an independent commission of the Government of Alberta.

    Due to confidentiality concerns, the Commission cannot reply to complaints of discrimination by email. Please contact the Commission by phone or regular mail if you have a specific complaint.

    You can access information about making FOIP requests for records held by the Commission on our Contact us page.

    The Commission will make publications available in accessible formats upon request for people with disabilities who do not read conventional print.