Alberta Human Rights Information Service March 20, 2013

In this issue:

Human rights case law: Tribunal and court decisions

Commission news

Other human rights and diversity news

Significant dates
Alberta news

Canadian news
Related publications and resources

HUMAN RIGHTS CASE LAW: TRIBUNAL AND COURT DECISIONS

1. Summaries of recent tribunal decisions released by the Commission

Chieriro v. Michetti, 2013 AHRC 3 (CanLII) (February 14, 2013; Sharon Lindgren-Hewlett, Tribunal Chair)
High damages awarded to employee who suffered numerous negative effects through employer's blatantly discriminatory actions
The complainant, Mr. Cheiriro, was a relative newcomer to Canada. He made a human rights complaint alleging discrimination in the area of employment. Mr. Chieriro alleged he encountered conduct referencing his colour (black), race, place of origin (Africa), ancestry, and religion. He claimed he requested not to work on his Sabbath and this was denied. He signed a mortgage at the request of the respondents and Mr. Chieriro claimed this transaction amounted to discrimination.

The tribunal found that Mr. Cheiriro had suffered abuse and exploitation in his workplace, culminating in Mr. Cheiriro's termination from the workplace on protected grounds. The tribunal found that Mr. Cheiriro's employer had involved him in a mortgage scheme by taking advantage of Mr. Cheiriro's newness to the country. The employer had also name-called Mr. Cheiriro and addressed him in a demeaning and threatening manner using racial slurs in a telephone message. Further, the tribunal found that the employer had refused to accommodate Mr. Cheiriro's reasonable requests regarding his religion.

The tribunal awarded $22,000 in general damages holding that this level of compensation was appropriate to address not only loss of dignity to Mr. Cheiriro but to "more fully articulate the compensable injuries caused by the discrimination," including the ongoing fear, disempowerment and distrust in the workplace, as well as the harm to daily living as experienced by Mr. Cheiriro.

Cowling v. Her Majesty the Queen in Right of Alberta as represented by Alberta Employment and Immigration, 2012 AHRC 12 (CanLII)
(December 13, 2012; Shirley Heafey, Tribunal Chair) 
Tribunal finds age discrimination and orders reinstatement and damages
The complainant, Ms. Cowling, alleged discrimination on the ground of age when her contractual employment was not renewed by her employer. Ms. Cowling was a 67-year-old woman past the historical age of retirement, with strong qualifications and excellent performance reviews. 

The tribunal acknowledged that succession planning is a legitimate part of any organization; however the documentation and evidence supported that this particular planning targeted this individual because of her age and not because of her ability. The tribunal emphasized that employment decisions should be made on the basis of individual characteristics, not through discounting or undervaluing the growth potential of "faithful, qualified and performing employees who happen to be in an older age bracket." The tribunal found that the non-renewal of contractual employment of a 67-year-old employee was due to age discrimination in contravention of the Alberta Human Rights Act.

The tribunal ordered reinstatement through a one-year contract, lost wages over a period of five years discounted at 30% for contingencies, general damages for injury to dignity and self respect in the amount of $15,000, interest and costs. Both parties have appealed the decision to the Court of Queen's Bench.

2. The Commission recently released other tribunal decisions:

  • Bernardino Morales Reyes v. Newway Concrete Forming Ltd. (March 12, 2013; William D. McFetridge, QC, Tribunal Chair)
  • Susan Robinson v. City of Edmonton (January 14, 2013; Jennifer Burns, Tribunal Chair)
  • Ladislav Mihaly v. The Association of Professional Engineers, Geologists & Geophysicists of Alberta (APEGGA) and Muhammad Naveed v. The Association of Professional Engineers, Geologists & Geophysicists of Alberta (APEGGA) (Preliminary Matters Decision; January 3, 2013; William D. McFetridge, QC, Tribunal Chair; Jennifer Burns, Tribunal Member; Moosa Jiwaji, Tribunal Member)
  • Kennya Malko-Monterrosa v. Sheet Metal Workers' International Association Local Union No. 8 and Alberta Sheet Metal Workers' Health and Welfare Plan and Coughlin & Associates Ltd. and Manulife Financial (December 13, 2012; William D. McFetridge, QC, Tribunal Chair)
  • Rashid Abdulkadir v. Creative Electric Co. Ltd. and John McEwan (Preliminary Matters Decision; November 28, 2012; Moosa Jiwaji, Tribunal Chair)

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

3. Important court decision related to human rights

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 (Supreme Court of Canada, February 27, 2013)
Legislative provision addressing expression that "exposes or tends to expose to hatred" constitutionally upheld. However, the provision prohibiting expression that "ridicules, belittles or otherwise affronts the dignity of" is constitutionally invalid and is severed from the legislation. 
This much-anticipated decision addressed the constitutionality of the Saskatchewan Human Rights Code, which prohibits hate speech. The Saskatchewan Human Rights Commission received four complaints concerning four flyers that were published and distributed. The complainants alleged that the flyers promoted hatred against individuals on the basis of their sexual orientation. A Saskatchewan human rights tribunal had held that the four flyers, condemning homosexuality and describing gays and lesbians in very strong and allegedly hateful terms, contravened the hate speech provisions of the Code. The Court of Queen's Bench upheld the tribunal's decision. The Court of Appeal accepted that the provision was constitutional but held that the flyers did not contravene the Code.

The Supreme Court of Canada (SCC) held that a provision in Saskatchewan's human rights legislation that prohibited any representation including publications or written materials that "ridicules, belittles or otherwise affronts the dignity of" any person or class of persons on the basis of a prohibited ground is not a reasonable limit on freedom of expression or religion. Those words were held to be constitutionally invalid and were severed from the statutory provision. However, the provision that focused on any representation "that exposes or tends to expose to hatred," while infringing the right of freedom of expression,  is saved by section 1 of the Charter as a reasonable limit and demonstrably justified in a free and democratic society.

In the unanimous judgment, the SCC indicated that the test for determining whether the Code's remaining hate speech provisions were contravened is whether "a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred." Further, the SCC emphasized that hateful expression does not include expression that is offensive; rather hatred must be viewed as an "extreme manifestation of the emotion described by the words detestation or vilification." Lastly, the focus of the analysis must be on the effect of the expression on the targeted group, and not the intent of the author of the expression.

The SCC upheld the human rights tribunal's decision with respect to two of the flyers, indicating that the flyers met the test for hateful expression under Saskatchewan's human rights legislation. The SCC overturned the tribunal's position with respect to the remaining two flyers, holding that the context did not demonstrate that these flyers exposed the protected group to hatred.

COMMISSION NEWS

1.
Chief of the Commission and Tribunals, and Director of Commission reappointed: On December 19, 2012, the Lieutenant Governor in Council reappointed the Honourable David Blair Mason, Q.C. as a member of the Commission and redesignated him as Chief of the Commission and Tribunals of the Alberta Human Rights Commission for a term to expire on December 31, 2013.

Donald W. Smallwood was reappointed as Director of the Alberta Human Rights Commission for a term to expire on April 1, 2014.

You can read the Orders in Council reappointing the Chief and the Director and the biographies of members of the Commission.

2. The Commission attended recent events: 

  • Laskin Moot Competition: Janice Ashcroft, Senior Legal Counsel, Alberta Human Rights Commission, was a member of the practice judging panel of the Laskin Moot Competition held at the University of Alberta (U of A) on March 2, 2013. The Laskin Moot Competition offers law students the opportunity to compete against other law students from across the country in preparing factums (briefs of law) and advocating their positions before members of the Judiciary. This year's hypothetical legal appeal was based on the Supreme Court of Canada decision in the human rights case of British Columbia (Workers' Compensation Board) v. Figliola. As a member of the practice judging panel, Ms. Ashcroft assisted the teams in the practice rounds. The U of A's Laskin Moot Team won the 2013 top school prize in the competition. The prize is awarded to the school that has won all competition rounds and performed consistently throughout the moot in all categories. 

  • Citizenship Ceremony and Roundtable Discussion: The Commission, in partnership with the Institute for Canadian Citizenship, Citizenship and Immigration Canada and Mount Royal University, co-hosted a citizenship ceremony, roundtable discussion and reception on February 20, 2013 at Mount Royal University in Calgary. Blair Mason, Chief of the Commission and Tribunals, Alberta Human Rights Commission, congratulated the new Canadian citizens and talked about the work of the Commission and its role in protecting people from discrimination and supporting many proactive initiatives aimed at reducing discrimination, prejudice and racism. Approximately 300 participants attended, including 75 new Canadian citizens representing 23 countries, their friends and family.

    Several Commission staff participated as facilitators for the round table discussions where the new Canadians and their families explored and discussed what citizenship means to them.

    New Canadians and their families participate in round table discussions with Commission staff as facilitators.



    Blair Mason, Chief of the Commission and Tribunals, Alberta Human Rights Commission, congratulates a new Canadian citizen.

    • Presentation to U of C 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 Calgary law school class on February 11, 2013. In addition to learning about the Commission investigation and tribunal process, the students participated in a lively discussion about current human rights issues.   

    • Forum: Accommodating mental and physical disabilities in the workplace: The Commission, in partnership with the Human Resources Institute of Alberta, the Edmonton Chamber of Commerce, Enbridge and SMS Equipment hosted a forum, "Accommodating Mental and Physical Disabilities in the Workplace," on January 30, 2013 in Edmonton. The forum attracted 65 participants including employers, unions and employees.

      Blair Mason, Chief of the Commission and Tribunals, Alberta Human Rights Commission, welcomed the participants and encouraged active engagement in discussing this complex topic. Keynote speaker, Janice Ashcroft, Senior Legal Counsel, Office of the Chief of the Commission and Tribunals, Alberta Human Rights Commission, focused on the challenges of accommodating mental disabilities in the workplace. The participants were provided with case studies and were required to work through various workplace accommodation scenarios. The forum concluded with an employee who had a mental disability and her employer providing a very personal and positive perspective regarding the workplace accommodation of the employee. Read more about the forum.

    • Get a Handle on Hate: Join the Conversation: On December 6, 2012, as part of United Nations Human Rights Day commemorations, the Commission partnered with Calgary Centre for Culture Equity and Diversity, Alberta Hate Crimes Committee, Alberta Network of Immigrant Women, Calgary Public Library and the Calgary Police Service to facilitate a dialogue on hate crime and hate speech. Blair Mason, Chief of the Commission and Tribunals, Alberta Human Rights Commission, offered opening remarks. Several speakers including Dan Shapiro of the Sheldon Chumir Foundation for Ethics and Leadership, Dr. Darren Lund of the University of Calgary and Constable Eric Levesque of the Calgary Police Hate Crimes Unit provided interesting perspectives on the subject of hate crime and hate speech, which was followed by lively participant discussions.  
    • 3. Recent policy regarding kirpans at Alberta courthouses: An individual made a human rights complaint after being denied entry into an Alberta courthouse because he was wearing a kirpan. A kirpan is a stylized representation of a sword, which is an article of the Sikh faith, worn by initiated Sikhs (known as Khalsa Sikhs) as a requirement of their religion. He alleged discrimination based on the ground of religious beliefs due to a court policy that stated kirpans were not allowed to be worn in the courthouse. The parties settled this matter at the tribunal stage of the Commission's complaint process. The settlement resulted in a revised policy regarding individuals wearing kirpans in public areas of Alberta courthouses. Read more about the revised kirpan policy.

      4. Human Rights Education and Multiculturalism Fund




      The Human Rights Education and Multiculturalism Fund (the 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 Fund also provides financial support for outcome-based projects that support changes that build equitable and inclusive communities and organizations.
       
      When developing initiatives, organizations are encouraged to work with one of the Commission's Education and Engagement consultants to develop projects that are viable and maximize the resources available. Please contact a consultant to discuss Fund priorities and your ideas for projects before applying for financial assistance. The next deadline for Letters of Intent is May 1, 2013.

      Recently completed project:
      Working Together to Build Safe Communities Project:
      With the support of a grant through the Human Rights Education and Multiculturalism Fund, Somali women's groups in Edmonton have helped youth by developing their capacity to respond appropriately to discrimination and harassment. The Society for Safe and Caring Schools & Communities collaborated with local Somali women to develop facilitator and participant guides on alternative ways for Somali youth to resolve conflict. The themes are: Living Respectfully, Developing Self Esteem, Preventing Prejudice, Managing Anger and Dealing with Bullying, and Resolving Conflicts Peacefully. These resources were utilized in workshops with Somali women to help youth integrate and be more successful in school and the community. Women who completed the workshops have become more involved in school activities and have expressed a greater confidence when communicating in parent-teacher meetings. You can read the final summary report. For more information about this project or the guides, please contact 780-822-1500 or office@sacsc.ca .

      5. 2013 Diversity Leadership Award of Distinction

      Each year, the Commission partners with the Alberta Chambers of Commerce to offer the Alberta Human Rights Commission Diversity Leadership Award. This award is one of the Alberta Business Awards of Distinction. This year, the 2013 Diversity Leadership Award of Distinction was awarded to Chrysalis: An Alberta Society for Citizens with Disabilities at a gala in Edmonton on March 8 for their outstanding achievements in creating a diverse and inclusive workplace. Chrysalis has demonstrated leadership by embracing diversity in its workforce, encouraging respect and inclusion, and working toward eliminating discrimination and barriers to fair employment practices. They have created a corporate culture that values the distinct abilities, experiences and perspectives of their employees.

      Finalists recognized for their commitment to diversity and inclusion were Gienow Windows & Doors and DevFacto.

      Nominations for this award open in mid-September. Read more about the Diversity Leadership Award.

      2013 Diversity Leadership Award recipient Lynn Groves-Hautmann, President/CEO, Chrysalis: An Alberta Society for Citizens with Disabilities and Geeta Bharadia, QC, Full-time Member of the Commission and Tribunals/Acting Chief of the Commission and Tribunals, Alberta Human Rights Commission.

      PLEASE NOTE: In the following sections of the newsletter, we publish news and information from 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 of other organizations presented 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

      March 21 is International Day for the Elimination of Racial Discrimination:
      International Day for the Elimination of Racial Discrimination is observed all around the world to focus attention on the problems of racism and the need to promote racial harmony. The United Nations designated this day in memory of anti-apartheid demonstrators killed in Sharpeville, South Africa in 1960. Albertans are invited to participate in events organized across the province. Read more about International Day for the Elimination of Racial Discrimination.

      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 web page.

      Alberta news

      1. Social issues and needs of Calgarians survey: The United Way of Calgary and Area and the City of Calgary conducted a community assessment survey, Signposts, that provides a comprehensive view of social issues and service needs of Calgary. Read more about the survey, and read the complete report. You can also read supplement reports:

      Canadian news

      1. Governor General's Awards in Commemoration of the Persons Case:
      The Annual Governor General's Awards in Commemoration of the Persons Case are presented to candidates from across Canada who have helped advance equality for women and girls. To be eligible for nomination, candidates must be Canadian citizens. Nominations for the 2012 awards are currently being accepted. Read the awards brochure.

      2. Pathways to Prosperity website launched: From the website: Pathways to Prosperity is "an alliance of university, community, and government partners dedicated to fostering welcoming communities and promoting the integration of immigrants and minorities across Canada." Five regional sites are offered including a Prairies site.


      RELATED PUBLICATIONS AND RESOURCES

      1. Workplace Strategies for Mental Health website: Great-West Life Centre for Mental Health in the Workplace offers a website to help Canadian employers address mental health issues in the workplace. 

      2. Resource for facilitators of human rights education: The 2012 version of COMPASS: Manual for Human Rights Education with Young People has recently been published by the Council of Europe. The updated manual builds on the 2002 edition and incorporates new issues including disability and disablism, religion, remembrance, war and terrorism. You can order the 2012 edition online and download the 2002 edition.

      3. Resource to help parents protect children online: Parents and caregivers have a new resource to teach them about the potential risks that their children may be exposed to while using the Internet. Internet Savvy is an online course that focuses on a range of topics such as cyberbullying, social networking, online marketing to children and youth, gaming and sexual exploitation. It provides parents and caregivers with practical tools and tips to protect their children online. Read the news release.

      4. Human rights issues toolkit for youth activities: Equitas - International Centre for Human Rights Education offers an educational toolkit called Play it Fair! From the Equitas website: "Play It Fair! is an easy to use educational toolkit developed to promote human rights, non-discrimination and peaceful conflict resolution within non-formal education programs for children, such as summer camps or after school activities." You can download the toolkit from the website.

      5. Myths surrounding Canada's Aboriginal population: In recognition of National Aboriginal Day, TD Economics released its third report, Debunking Myths Surrounding Canada's Aboriginal Population
      in a series of articles on Aboriginal social and economic issues.

      6. Employer's guide for trans-identified employees: The Alberta Civil Liberties Research Centre (ACLRC) released the publication Employer's Guide: Trans-Identified People in the Workplace. From the ACLRC website: This is a "handy guide to terminology, pertinent human rights law, privacy, revealing gender identity to other employees, use of bathrooms and other issues regarding accommodation of trans-identified persons in the workplace."

      7. Sexual orientation and gender identity: The United Nations Human Rights Office of the High Commissioner released the publication Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law. From the website: "It sets out the source and scope of some of the core legal obligations that States have to protect the human rights of lesbian, gay, bisexual and transgender (LGBT) people. The 60-page booklet is designed as a tool for States, to help them better understand the nature of their obligations and the steps required to meet them, as well as for civil society activists, human rights defenders and others seeking to hold Governments to account for breaches of international human rights law."

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