Alberta Human Rights Information Service September 25, 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. The Commission recently released the following tribunal decisions:

  • Sheila McMillan v. United Steelworkers, ASM #1595 (August 1, 2013; William D. McFetridge, Q.C., Tribunal Chair)
  • Sharookh Balsara v. Zellers Inc. (June 27, 2013; Melissa L. Luhtanen, J.D., Tribunal Chair)

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

2. Other important court and tribunal decisions related to human rights:

Walsh v. Mobil Oil Canada, 2013 ABCA 238 (Alberta Court of Appeal, July 4, 2013) 
Albert Court of Appeal addresses tribunal remedy decision in long-standing human rights case

In 1991, Ms. Delorie Walsh made a human rights complaint against her employer, Mobil Oil Canada (now Exxonmobil Canada Ltd.), alleging discrimination on the ground of gender. She made a second complaint in 1995, alleging retaliation when her employment was terminated.  The Court of Queen's Bench and later the Alberta Court of Appeal held that Mobil had discriminated against Ms. Walsh and retaliated against her for making a human rights complaint. The matter was returned to the Alberta Human Rights Tribunal (the Tribunal) to assess appropriate remedy.

The Tribunal ordered lost wages totaling $472,766 over a five-year time frame, general damages in the amount of  $35,000 ($25,000 for retaliation and $10,000 for discrimination), pension, future expenses for treatment costs, employment expenses,  party/party costs including reimbursement for expert witnesses, and interest. Both Ms. Walsh and Mobil appealed the decision to the Court of Queen's Bench. The Court of Queen's Bench upheld the decision with the exception of personal expenses, which the Court said was not addressed. Both Ms. Walsh and Mobil appealed the Court of Queen's Bench decision to the Court of Appeal.  

The Court of Appeal upheld the Tribunal award, almost in its entirety. Paperny JA emphasized that:

[32]  Damage awards that do not provide for appropriate compensation can minimize the serious nature of discrimination, undermine the mandate and principles that are the foundation of human rights legislation, and further marginalize a complainant. Inadequate awards can have the unintended but very real effect of perpetuating aspects of discriminatory conduct. 

In analyzing the lost income award, a majority of the Court of Appeal confirmed that damages for discrimination are not to be assessed in the same manner as wrongful dismissal awards. The Court reinforced the principles outlined in the case of Chopra v. Canada, 2007 FCA 268, stating that "any damages causally linked to the discriminatory conduct are payable, subject to a limitation on a 'principled basis.'"  The Court further stated that the general damages awarded were low but upheld the amount as reasonable. The Court did not accept Mobil's argument that any damages should be reduced due to Ms. Walsh's Workers' Compensation Board claim. 

AUPE v. Alberta, 2013 ABCA 212 (Alberta Court of Appeal, June 14, 2013)
Alternatives to arbitration: Human rights complaints and other dispute resolution mechanisms   

A person with cerebral palsy, who was wheelchair-bound and relied on voice recognition software, was hired by the Alberta Department of Employment, Immigration and Industry (Alberta) for an eight-month term pursuant to a University of Lethbridge work co-op program. The employee was subject to a collective agreement. The employee's employment was terminated after two months by Alberta on the basis of the employee's "inability to perform the duties and requirements of [the] position." The union grieved, arguing that the dismissal was discriminatory on the basis of disability and that Alberta failed to accommodate the employee's disability.

Provisions of the collective agreement stated that grievances by temporary wage employees could be adjudicated by a designated officer rather than proceed to arbitration. In this case, the designated officer was an employee of Alberta, though not subject to the collective agreement.

The designated officer stated arbitration was not required because other tribunals could hear the alleged human rights violations. The union requested a judicial review of the decision. On judicial review, the decision was upheld as being reasonable. The union then appealed to the Alberta Court of Appeal, arguing that the Labour Relations Code should be interpreted to require arbitration where the dispute arises from an alleged breach of statutory rights.

The Court of Appeal dismissed the appeal, holding that: (1) section 135 of the Labour Relations Code did not require that disputes arising from breach of statutory rights go to arbitration. Section 135 permitted dispute resolution by a designated officer; (2) the designated officer's decision was not unreasonable in concluding that he did not have the jurisdiction to hear the grievance; (3) there is no difference at the remedial level where parties who agree to a dispute resolution process are faced with a dispute arising from the alleged breach of a statutory right rather than a contractual right; and (4) it was not unreasonable for the designated officer to conclude that other dispute resolution mechanisms, such as a complaint to the Alberta Human Rights Commission, were effective alternatives to arbitration.


Monrose v. Double Diamond Acres Limited 2013 HRTO 1273 (Human Rights Tribunal of Ontario, July 23, 2013)
Fired employee who reported human rights concerns was a victim of retaliation

Mr. Monrose alleged that he and other employees experienced discrimination when they were called "monkeys" by supervisors as well as by the owner respondent, and further that his employment was terminated in retaliation for raising these human rights concerns with his employer. 

The Human Rights Tribunal of Ontario found that discrimination had occurred and that calling a black man in this particular context a "monkey," was demeaning and clearly discriminatory. The Tribunal awarded Mr. Monrose general damages in the amount of $3,000 for being called a "monkey." The Tribunal also held that the employer had retaliated against the Mr. Monrose by firing him when he tried to report human rights concerns. The Tribunal awarded further general damages in the amount of $15,000 for compensation due to retaliation. In addition, the Tribunal awarded an amount for lost wages. The Tribunal also ordered the employer to develop a comprehensive anti-discrimination and human rights policy, and to require all supervisors and managers to attend an online human rights training course.   

Peel Law Association v. Pieters, 2013 ONCA 396 (Ontario Court of Appeal, June 13, 2013)
Ontario Court of Appeal restores decision of human rights tribunal finding discrimination on the basis of race and colour

Two black lawyers were counsel in a proceeding at the Brampton Courthouse and an articling student, who was also black, accompanied them. During a break, they visited the lawyers' lounge operated by the Peel Law Association, where the library administrator asked them for identification. No one else using the lounge was asked for identification.

The Vice-Chair of the Human Rights Tribunal of Ontario found that the way in which the library administrator approached the individuals and asked them questions was not how she would approach and question persons who she believed were lawyers and had a right to be in the lounge, and held that the manner in which she negatively interacted with the lawyers was because of their race and colour.

The Ontario Divisional Court overturned the decision, holding that there was an insufficient evidentiary basis for finding prima facie discrimination and that the burden of proof had been improperly reversed. The Ontario Court of Appeal ultimately restored the Tribunal's decision, emphasizing that all that is required to show prima facie discrimination is that the ground of discrimination must somehow be a "factor" in the adverse treatment (paragraph 59).  The Court also made some instructive comments on the burden of proof in a human rights complaint:

[72] . The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents' state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents' evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.
[73] In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence.  Relatively "little affirmative evidence" is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
[74] If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent's evidence is false or a pretext.

COMMISSION NEWS

1. Three new Members of the Commission and three reappointments to the Commission: The Government of Alberta has appointed three new part-time Members of the Commission to the Alberta Human Rights Commission: Joanne B. Archibald, Sarah E. FitzGerald and William J. Johnson, Q.C. Three members of the Commission have also been reappointed: Moosa Jiwaji, Shirley Heafey and William D. McFetridge, Q.C. Their terms will end on July 24, 2016. You can read the biographies of Members of the Commission.

    2. 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.
     
    Recently completed projects supported by the Fund:

    • My History, Our Future project: The Vecova Centre for Disability Services and Research (formerly known as Vocational and Rehabilitation Research Institute) has created an accessible video-based training program that builds self-advocacy skills for youth and adults with developmental disabilities. The curriculum defines self-advocacy and describes the fundamental rights that every person has protected by law. Vecova collaborated with self-advocacy facilitators and people with developmental disabilities to create a facilitator's guide, workbooks and 28 videos. You can download the resources. For more information, please contact research@vecova.ca

    • Human Trafficking 101: Action Coalition on Human Trafficking (ACT Alberta) is increasing awareness of the connection between human trafficking and human rights values based on federal and provincial human rights legislation. ACT Alberta has developed a training curriculum that identifies human rights instruments that protect victims of trafficking, the wide spectrum of victims and their needs, and the link between service organizations for prevention and post-trafficking assistance. Fourteen community volunteers received training and then led presentations on human trafficking to organizations, schools and faith-based groups in Edmonton and Calgary. The module Human Trafficking 101 is available in PDF. For more information, please contact ACT Alberta at 780-474-1104.

    • Anti-Racism Education in Canada: Best Practices: The Centre for Race and Culture (CRC) prepared a report summarizing best practices in anti-racism education for youth as well as examples of school district initiatives in Canadian cities. The CRC conducted the research as part of their work to assist schools in developing action plans tied to their anti-racism policies. The report, Anti-Racism Education in Canada: Best Practices, includes a research summary, literature review for implementing policies and conclusions on the benefits of anti-racism education as a whole-district initiative. You can read the report. For more information, please contact the CRC at 780-425-4644.

    • Rights Write Special Edition: The Urban Society for Aboriginal Youth (USAY) produced a special edition of New Tribe Magazine that features articles on racism and discrimination and their impact on Aboriginal communities. New Tribe Magazine is a free monthly publication designed to engage urban Aboriginal youth in the Calgary area.

      The special edition features an introductory greeting from the Honourable Blair Mason, Chief of the Commission and Tribunals, Alberta Human Rights Commission, outlining the need for individuals and groups to work together to counter racism and discrimination so that they feel empowered to take action and advocate for equality, fairness and rights.

      The articles in the special edition, Rights Write Special Edition, creatively describe the inspirational successes of individuals who have overcome racism and the challenges that remain in Aboriginal communities. The special edition can be used as a tool to launch discussions with youth surrounding equality and unity. The full-colour, 39-page special edition can be viewed online. USAY is also offering free shipping of multiple copies of the New Tribe Magazine for organizations with youth programs. For more information, please contact Rachel Paris, program manager, at programmanager@usay.ca.

    3. Nominations open for the Diversity Leadership Award of Distinction 2014:

    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, 2013. Applications are submitted online.

    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 

    Significant dates

    There are a number of significant international, national and provincial days related to human rights and diversity taking place in October, November and December, including: 

    • International Day of the Girl Child
    • Persons Day
    • International Day for Tolerance
    • National Bullying Awareness Week

    You can read about these dates and other upcoming significant dates.

    Alberta news
     
    1. Welcoming and Inclusive Communities guide: The Alberta Urban Municipalities Association has developed a guide called So you want to form a WIC committee? to help municipalities create successful terms of reference for their Welcoming and Inclusive Communities (WIC) committee. You can view the guide online.

    2. Elimination of harmful cultural practices: The Indo-Canadian Women's Association in Edmonton received funding from Status of Women Canada to conduct a community-based project for South Asian and Middle Eastern communities. From the project evaluation report: "The aim of the project was to raise consciousness among community members and their service providers about harmful cultural practices in these communities that increase women's risk of abuse and violence." You can read the project evaluation report Elimination of Harmful Cultural Practices: A Community Centred Project For Education and Action online.

    Canadian news

    1. 35th Anniversary of the Canadian Human Rights Commission: This year marks the 35th anniversary of the establishment of the Canadian Human Rights Commission (CHRC). From the CHRC news release: "When Parliament created the Canadian Human Rights Act and mandated the CHRC to administer it, it was with the vision of an inclusive society where everyone is valued and respected. ... The CHRC's work complements the work of provincial and territorial human rights institutions tasked with ensuring that businesses and governments in their jurisdictions accommodate people's needs and treat all individuals fairly, with dignity and respect."

    2. Amendment to the Canadian Human Rights Act: Federal Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), S.C. 2013, c. 37 received Royal Assent on June 26, 2013, and comes into force on June 26, 2014. The Bill repealed section 13 of the Canadian Human Rights Act, which dealt with hate messages published using telecommunication facilities, such as comments and opinions expressed on Internet websites. Future prosecution for hate speech will fall under the hate propaganda provisions of the Criminal Code (ss. 318-320.1) with consequent higher burden of proof (that is, guilt to be established beyond a reasonable doubt) and limited to hate speech directed at identifiable groups on the basis of colour, race, religion, ethnic origin or sexual orientation. You can read the Government of Canada news release

    3. Policy on removing the "Canadian experience" barrier: On July 15, 2013, the Ontario Human Rights Commission (OHRC) implemented a new policy removing the "Canadian experience" barrier in employment applications. The effect of the policy is that employers and regulatory bodies, such as accrediting professional organizations, may not ask questions regarding an applicant's work experience in Canada unless the "Canadian experience" is legitimately required for the job. The policy is intended to address discrimination directed at immigrants who "can't get a job without Canadian experience and ... can't get experience without a job" which results in immigrants often turning "to unpaid work such as volunteering, internships or low-skilled 'survival jobs' to meet the requirement for Canadian experience." The policy also addresses "obstacles to immigrants who apply for professional accreditation since some regulatory bodies will not admit new members without prior work experience in Canada." The OHRC offers various resources, including a brochure that outlines acceptable and unacceptable types of questions that employers and regulatory bodies may ask under the new policy. You can view the brochure.  

    RELATED PUBLICATIONS AND RESOURCES

    1. Conducting human rights investigations: A manual offering practical human rights investigative tools is now available free of charge from Investigations Training. The manual Undertaking Effective Investigations: A Guide for National Human Rights Institutions is available to download.

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