Alberta Human Rights Information Service September 26, 2012

In this issue:

Human rights case law: Tribunal and Court decisions

Commission news

Other human rights and diversity news

Alberta news

Canadian news

Related publications and resources

HUMAN RIGHTS CASE LAW: TRIBUNAL AND COURT DECISIONS

1. Court of Queen's Bench upholds significant Tribunal decision:
Walsh v. Mobil Oil Canada (Exxmobil Canada Ltd.) 2012 ABQB 527 (Alberta Court of Queen's Bench, August 22, 2012)
Court of Queen's Bench upholds significant remedy decision of Alberta Human Rights Tribunal as both reasonable and correct in long-standing human rights case  
The Alberta Court of Queen's Bench upheld, almost in its entirety, a remedy decision by the Alberta Human Rights Tribunal (the Tribunal), which had awarded significant damages for two human rights complaints. Earlier appeals confirmed two separate contraventions of the Alberta Human Rights Act (the Act) for gender discrimination and retaliation, and the courts had returned the matter to the human rights tribunal for a hearing on remedy.

The Court upheld the Tribunal award for lost wages for an approximate period of six years, stating that the Tribunal had reasonably found that the termination was a significant cause of Ms. Walsh's unemployment during that time frame. After that point, the reasons Ms. Walsh was not working were more causally related to other events including injuries suffered in a car accident.

With respect to general damages, the Court acknowledged that while there was no precedent for a $40,000 award in Alberta ($25,000 for retaliation plus $10,000 for initial discrimination), the Act specified no limits. The Court commented that the compensatory nature of the Act indicated that tort law could provide some guidance with respect to quantum of damages. Given the type of psychological loss suffered by Ms. Walsh, the corresponding general damage award was comparable with the amounts awarded in tort for similar injuries.

The Tribunal did not address the issue of personal expenses in their decision, and the Court remitted this issue back to the Tribunal for further consideration. 

2. Other important court decisions related to human rights:
Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal) 2012 BCCA 313 (British Columbia Court of Appeal, July 19, 2012)
British Columbia Court of Appeal overturns earlier rulings and holds that partner in a law firm is not an employee with protection under human rights legislation
The British Columbia Court of Appeal has recently held that a partner in a law firm could not be "employed" by that partnership for the purposes of the BC Human Rights Code. The Court held that neither "a broad, liberal and purposive interpretation of the Code" nor the analysis of the factual criteria of  "utilization," "control," "financial burden" or "remedial purpose" could change the legal entity of a partnership into an employment relationship between partners within the partnership.    

Ontario (Human Rights Commission) v. Farris [2012] O.J. No. 3060
Court decides that tribunal should have held principals and managers of defunct corporation liable in sexual harassment case
The Ontario Human Rights Tribunal held that a complainant, Ms. Farris, had been discriminated against on the basis of gender and subjected to a poisoned work environment. The principals, managers and the only shareholders of the company, Mr. McKeague and Mr. Leonard, were found to have failed to recognize and address the poisoned work environment, and to have terminated Ms. Ferris' employment contrary to the Ontario Human Rights Code. Given these findings by the Tribunal, the Court held that the Tribunal's failure to hold Mr. McKeague and Mr. Leonard jointly and severally liable was unreasonable.

The Court held that a finding against a corporation was not meant to shield against a finding of individual liability, and the focus of human rights legislation is to compensate the victim by providing an effective remedy. Accordingly, it was also unreasonable for the Tribunal to limit the remedy award alone as against an inoperative corporation, given that this corporation could not likely provide an effective remedy. The matter was remitted back to the Tribunal to reconsider the apportionment of liability. 


COMMISSION NEWS

1. Human Rights in the Workplace fall workshops: Four Human Rights in the Workplace public workshops are scheduled for fall 2012. 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 fall public workshop schedule for details.

    2. Human Rights Education and Multiculturalism Fund:




    The Human Rights Education and Multiculturalism Fund (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. The next deadline for receipt of Letters of Intent to apply for financial assistance is October 1, 2012.

    3. Nominations open for the Diversity Leadership Award of Distinction 2013:

    Nominations are now open for the Alberta Human Rights Commission Diversity Leadership Award of Distinction. The Diversity Leadership Award recognizes workplaces that welcome diversity in their workforces, are eliminating discrimination and barriers to employment and are helping to build respectful and inclusive workplaces. The Diversity Leadership Award is one of the Alberta Business Awards of Distinction. Organizations in all sectors, including businesses, community organizations and public institutions, are eligible to apply. The deadline for nominations is November 23, 2012. Applications are submitted online.

    4. Coalition of Municipalities Against Racism and Discrimination (CMARD) update:

    The United Nations Educational, Scientific and Cultural Organization (UNESCO) recently launched the report Fighting Racism and Discrimination: Identifying and sharing good practices in the International Coalition of Cities. The report features good practices from cities around that world that are members of the International Coalition of Cities. Practices from Calgary and Lethbridge, both members of CMARD, are among the Canadian cities featured in the report.

  • The Commission's partnership with Alberta Urban Municipalities Association (AUMA) will be continuing. The purpose of the partnership is to develop increased capacity to build Welcoming and Inclusive Communities (WIC) that are free from discrimination and to advance CMARD in Alberta. This phase of the partnership will concentrate on developing templates with metrics that communities can use to evaluate their progress toward becoming more equitable and inclusive of all community members. The partnership will also explore ways to maximize the WIC momentum and work toward sustainability. A provincial networking meeting is also being planned. Read more about the partnership.   
  • 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:

    August 9 was International Day of the World's Indigenous People: Celebrated each year on August 9, this marks the day of the first meeting, in 1982, of the UN Working Group on Indigenous Populations of the Subcommission on the Promotion and Protection of Human Rights. Learn more about the day and read the message from Irina Bokova, Director-General of UNESCO.

    August 12 was International Youth Day: This year's theme for International Youth Day was "Building a Better World: Partnering with Youth." Learn more about the day and read the message from Irina Bokova, Director-General of UNESCO.

    September 1 was Daughters Day: The inaugural Daughters Day was held at Edmonton's City Hall on September 1, 2012. The goal of Daughters Day is to eliminate gender inequality, violence and discrimination against girls and women at home, at school, in the workplace and on the street. Sponsored by the Indo-Canadian Women's Association and Citizens for a Civil Society, Daughters Day featured a variety of speakers, entertainment and information booths. The day celebrated achievements and successes of girls and women. The Commission participated in the Edmonton Daughters Day event by hosting an information booth. Many of those who attended the event engaged with Commission staff at the booth to learn about the Commission's programs and services and about their rights and responsibilities related to human rights.

    September 8 was International Literacy Day: International Literacy Day focused on the link between literacy and peace. UNESCO reports that worldwide almost 800 million adults, mostly girls and women, are illiterate. This year marks the 10th year of UNESCO taking the lead of the United Nations Literacy Decade (2003-2012).

    The Alberta Human Rights Commission has developed a publication about human rights in Alberta for adults who are improving their English literacy skills. Read more and link to the print and audio versions of Human rights in Alberta.

    September 21 was the International Day of Peace: "Peace Day" provides an opportunity for individuals, organizations and nations to create practical acts of peace on a shared date. On this day, the United Nations asks warring parties around the world to observe one day of cease-fire. Special activities and celebrations including festivals, concerts and a global Peace Wave with moments of silence at noon in every time zone, took place across the world over the 2012 Peace Day Weekend. Read more about International Day of Peace and about ideas and resources as well as events that took place to recognize the day. The Commission participated in an event organized by the Lethbridge network of the Coalition of Municipalities Against Racism and Discrimination (CMARD) to mark the International Day of Peace in Lethbridge.

    October is Women's History Month: This year's theme for Women's History Month is "Strong Girls, Strong Canada: Leaders from the Start." From the Status of Women Canada website: "For 20 years, Women's History Month has showcased the vital role that women and girls in communities across Canada have played in the shaping of our country's history. During October, girls' roles and achievements in Canada's history and development will be highlighted, as well as the challenges and opportunities girls have faced over time. This year's theme for Women's History Month gives Canadians the opportunity to recognize girls as leaders and to celebrate the leadership role girls have played in Canadian history." Read more about Women's History Month.

    October 11 is International Day of the Girl Child: From the Status of Women Canada website: "This international day will promote equal treatment and opportunities for girls around the world in areas such as law, nutrition, health care, education, training, and freedom from violence and abuse." The Government of Canada led the international community in establishing this day.

    October 18 is Persons Day: Persons Day commemorates the 1929 landmark decision when women were declared "persons" under the law. Read more about the Persons Case. Alberta recognizes Persons Day through the Persons Case Scholarships, available for Alberta students who choose studies that contribute to the advancement of women, or for students who are pursuing careers in fields where members of their gender are under-represented. Scholarship applications are available online.

    November 20 is Universal Children's Day: Universal Children's Day commemorates the day on which both the Declaration of the Rights of the Child (1959) and the Convention on the Rights of the Child (1989) were adopted. The Convention outlines the basic human rights to which children everywhere are entitled. Canada's national "Child Day" is held annually on November 20, as enacted in Bill C-371, otherwise known as the Child Day Act, by the Parliament of Canada in 1993.

    November 25 is the International Day to End Violence Against Women: From the Say No to Violence website: "Say NO - UNiTE to End Violence against Women is a social mobilization platform on ending violence against women and girls, contributing towards UN Secretary General's system-wide campaign, UNiTE to End Violence against Women." Read more.

    November 25 to December 10: 16 Days of Activism Against Gender Violence: The global theme of "From Peace in the Home to Peace in the World: Let's Challenge Militarism and End Violence Against Women!" continues for 2012. Read more about the campaign and the 2012 theme.

    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. 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. 2012 Queen's Golden Jubilee Citizenship Medal:
    Hard working and dedicated citizens from Edmonton and area were recognized with Queen Elizabeth II Diamond Jubilee Medals at a ceremony in Edmonton hosted by Lieutenant Governor, His Hounour, Col. (Ret'd), the Honourable Donald S. Ethell. The recipients received royal recognition for their outstanding contributions to their communities through good citizenship, leadership, community service and volunteerism. Three recipients are strong human rights champions: John Stafford O'Neill, Gerald Gall (awarded posthumously - medal accepted by Karen Gall) and Krishan Joshee. Read the news release and background information about the recipients.

    2. Government toughens rules to protect job seekers: The Alberta government is strengthening laws to better protect workers who use employment agencies to find work. Amendments to the Employment Agency Business Licensing Regulation will provide additional protections making it illegal for businesses to: mislead temporary foreign workers about their rights or their chance of becoming a Canadian citizen; pressure workers to lie to Canadian officials; intimidate or threaten individuals seeking work; or require workers to provide a performance bond. Read the news release. 

    Canadian news

    1. Task force to study employment for people with disabilities: Human Resources and Skills Development Canada has created the Panel on Labour Market Opportunities for Persons with Disabilities to help people with disabilities gain meaningful employment. From the website: "The Panel's mandate is to identify private sector successes and best practices with regard to the labour market participation of persons with disabilities, as well as barriers and disincentives to their employment." Read more about the Panel.

    2. Ontario's human rights legislation amended to protect gender identity: Gender identity and gender expression are now officially protected grounds under the Ontario Human Rights Code. Ontario is the first jurisdiction in North America to explicitly guarantee a right to equal treatment without discrimination because of gender identity or gender expression. Read Bill 33, Toby's Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012, which received Royal Assent on June 19, 2012.

    3. National Action Plan to Combat Human Trafficking launched: On June 6, 2012, the Government of Canada launched the National Action Plan to Combat Human Trafficking. From the Public Safety Canada news release: "Canada's National Action Plan, with participation from 18 federal departments, is a comprehensive blueprint to guide the Government of Canada's fight against the serious crime of human trafficking." 

    The Government of Canada consulted with
    ACT Alberta in the development of the Plan. ACT Alberta offers a unique model to raise awareness and help prevent human trafficking. From the ACT Alberta website: "ACT Alberta responds to human trafficking collaboratively with community agencies, law enforcement and government by providing assistance to victims, supporting the prosecution of traffickers, and enhancing knowledge and awareness of the issue. ACT Alberta has emerged as the leader in Canada's response to human trafficking and promotes a human rights based response in communities throughout the province and across the country."

    The Human Rights Education and Multiculturalism Fund (Human Rights Fund) provided funding to support the development of Alberta's protocol and networks of organizations working on this issue. Last year, the Human Rights Fund also provided support to help ACT Alberta provide training and build awareness about human trafficking.

    RELATED PUBLICATIONS AND RESOURCES

    1. New Aboriginal resource: BearPaw Legal Education and Resource Centre released a pamphlet, Aboriginal Identity: Terms and Definitions, that clearly defines identifying terms and rights that apply to all Aboriginal people.

    2. New web portal for social development professionals: T
    he Social Policy and Development Division of the United Nations Department of Economic and Social Affairs has launched a pilot project web portal called the United Nations Social Development Network. The purpose of the web portal is to share knowledge and good practices among social development professionals worldwide.

    3. New information bulletins for boards: The Board Development Program through Alberta Culture offers information bulletins on a variety of board-related issues. From the website: "Each of the information bulletins published covers a special topic area that is relevant for not-for-profit board members and senior staff seeking information about improving skills and gaining knowledge in the area of governance." You can link to the information bulletins.
      

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