Alberta Human Rights Information Service June 19, 2015

 

In this issue:

Truth and Reconciliation Commission of Canada

National Aboriginal Day

Human rights case law: Court and tribunal decisions

Commission news

 

 

Other human rights and diversity news:

             Alberta news

Publications and Resources

Truth and Reconciliation Commission of Canada

On June 2, 2015, the Truth and Reconciliation Commission of Canada (TRC) released their final report with 94 recommendations at the TRC Closing Event in Ottawa. In response to the report, Mr. Robert Philp, Queen's Counsel, Chief of the Commission and Tribunals, Alberta Human Rights Commission, stated: "The Indian Residential School system, which was central to Canada's Aboriginal policy, has been described as 'cultural genocide.' It has resulted in a legacy of racism and discrimination against Aboriginal peoples. I commend the TRC for their report, which we will be reviewing to determine how we can strengthen our efforts to address the human rights issues that Alberta's indigenous people face."

You can read more about the Truth and Reconciliation Commission and the final report.

On June 21st, we commemorate National Aboriginal Day

This day is an opportunity for Canadians to celebrate indigenous culture and First Nations, Métis and Inuit peoples. In Alberta, we have a vibrant and growing population of Aboriginal people. In fact, Edmonton is home to the second largest number of urban Aboriginal people in Canada.

The diversity in our communities brings a richness of skills, language, culture and commitment to Alberta. We are all treaty people and it is important that we learn about and share in each other's traditions and cultures. June 21st provides an opportunity for all Albertans to experience Aboriginal culture and learn more about the history of our indigenous peoples.

Mr. Robert Philp, Queen's Counsel, Chief of the Commission and Tribunals, Alberta Human Rights Commission, offers a video message in recognition of National Aboriginal Day 2015.

The Commission has recently enhanced the content related to Aboriginal human rights on its website. You can view the updated Information and resources for Aboriginal Albertans page.

Many events are planned across the province to celebrate National Aboriginal Day. For more information about this important day and events taking place in communities throughout Alberta, visit the following websites:

HUMAN RIGHTS CASE LAW: COURT AND TRIBUNAL DECISIONS

1. I
mportant Alberta court and tribunal decisions related to human rights:

Mortland and VanRootselaar v. Peace Wapiti School Division No. 76, 2015 AHRC 9 (April 29, 2015; Sarah FitzGerald, Tribunal Chair)
Blanket age restriction of "age 65 or less" for driving school bus is found to be a contravention of the Alberta Human Rights Act

Two school bus drivers forced to retire at the age of 65 due to a school board policy filed human rights complaints alleging discrimination on the ground of age. The Tribunal held: "With the importance of the safe transportation of students always at the forefront of the analysis, the Tribunal finds, after hearing expert evidence relating to driver age and the safe transportation of students, an absolute 'age 65 or less' standard applied to mandatorily retire school bus drivers, is not reasonably necessary for the safe transportation of students. More frequent medical testing including visual and cognitive assessment along with on-road testing provide much better information concerning a person's fitness and ability to perform the duties of a school bus driver. Although visual and cognitive functioning declines slowly with age, the rate and extent of the change affects individuals differently. There are methods of individual driver assessment available to the School Division, which more closely and directly relate to safe driving performance and the safe transportation of children by individual drivers, than a blanket age based restriction at age 65." 

Amir and Nazar v. Webber Academy Foundation, 2015 AHRC 8 (April 10, 2015; Sharon Lindgren-Hewlett, Tribunal Chair; William J. Johnson, Q.C., Tribunal Member; Melissa Luhtanen, Tribunal Member)
Tribunal holds that refusal to allow students to perform a short prayer on school property during breaks was discriminatory

Two students who attended Webber Academy requested that they be allowed to pray once or twice a day during breaks for five or ten minutes each time. The Tribunal found that the students were flexible on where the prayer occurred and were not seeking a designated prayer space. The students were only seeking space where they had enough room to safely kneel and bow. The school refused to allow prayer to occur on its property and later wrote a letter to the students indicating that they would not be allowed to enroll in Webber Academy in the fall. The Tribunal held that prima facie discrimination had been established, as Webber's actions in preventing the prayer and refusing re-enrollment demonstrated an adverse action against the students based on their religious beliefs. The Tribunal further held that Webber Academy had not demonstrated that accommodation of prayer would have been an undue hardship. General damages were ordered as the students were found to have suffered injury to dignity and self-respect.  

Syncrude Canada Ltd. v. Saunders, 2015 ABQB 237 (Alberta Court of Queen's Bench, April 10, 2015)

The complainant, Jeff Saunders, worked as a process operator trainee for Syncrude Canada Ltd. in Fort McMurray. Mr. Saunders missed work, advising Syncrude that he suffered chronic migraines. He later broke his hand resulting in him missing approximately four months of work. Syncrude terminated his employment for excessive innocent absenteeism. Mr. Saunders filed a human rights complaint on the ground that he had been discriminated against because of his physical disabilities.

At the hearing, the Director of the Commission and Mr. Saunders provided a medical note indicating that he had been treated for chronic migraines as well as medical records from various doctors and hospitals confirming details and treatment of his broken hand.  

The Tribunal held that both the chronic headaches and broken hand were functional impairments and as such constituted physical disabilities under the Alberta Human Rights Act (the Act). The Tribunal found that  Mr. Saunders' disabilities were significant factors in his termination and accordingly,  prima facie discrimination had been established. The Tribunal also held that it was not prepared to draw an adverse inference from failure to call Mr. Saunders' doctor at the hearing, reasoning that most of the absences were due to the broken hand which was not in dispute, and Syncrude had full access to Mr. Saunders' medical file. The Tribunal further held that Syncrude failed to establish that it would suffer undue hardship if it continued to employ Mr. Saunders once he was cleared to return to work. The Tribunal awarded damages for lost wages and injury to dignity.

Syncrude appealed the tribunal decision to the Court of Queen's Bench where it was overturned. The Court of Queen's Bench held that Mr. Saunders' evidence was  inconsistent and the Tribunal had not properly considered the credibility of Mr. Saunders and its impact on establishing a prima facie case of discrimination. The Court also found that the Tribunal had improperly reversed the onus of proof by refusing to draw an adverse inference when the Director of the Commission and Mr. Saunders did not call Mr. Saunders' doctor as a witness. The Court also stated, however, that if its assessment was wrong on this appeal concerning discrimination, and there was in fact a contravention of the Act, then it would have upheld the compensation awarded by the Tribunal. 

2. The Commission also recently released the following tribunal decisions:

 

  • Rick Kalinowski v. Nexen Inc. (Preliminary Matters Decision Regarding Severance Agreement; June 8, 2015; Sharon Lindgren-Hewlett, Tribunal Chair)
  • Debbie Visser  v. FortisAlberta Inc. (June 3, 2015; Melissa L. Luhtanen, Tribunal Chair)
  • Tristan Olsen v. Hi-Tech Assembly Systems Inc. (May 12, 2015; Melissa L. Luhtanen, Tribunal Chair)

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

3. Important tribunal decision related to human rights from another jurisdiction: 

O.P.T. v. Presteve Foods Ltd. [2015] O.H.R.T.D. No. 675 (Ontario Human Rights Tribunal, May 22, 2015)
Tribunal awards $150,000 and $50,000 general damages to two employees subjected to serious gender discrimination while working under the Temporary Foreign Workers Program

The Ontario Human Rights Tribunal has found that two  employees working under the Temporary Foreign Workers program were subjected  to serious sexual harassment, a sexually poisoned work environment and reprisal by the owner and principal of the company. The Tribunal found that the sexual harassment involved sexual assault and touching, with the workers being compelled to comply under the threat of being returned to Mexico. The Tribunal also found that both complainants ultimately lost their employment because of acts of gender discrimination. The Tribunal stated that the level of sexual harassment was unprecedented, and the injury to dignity and self respect was great, especially when considering the particular life circumstances and vulnerability of the complainants as temporary foreign workers.  

COMMISSION NEWS

 

 

1. Commission releases four revised information sheets: The Commission recently released four revised information sheets related to the human rights complaint process: Information for complainants; Information for respondents; The Human Rights Complaint Process; and Remedy. You can access all of the Commission information sheets related to the complaint process from this index page:
http://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/sheets/complaints.asp


2. The Commission attended recent events:

 

Intensive Advocacy Seminar: On June 13, 2015, Janice Ashcroft, Q.C., Senior Legal Counsel, Office of the Chief of the Commission and Tribunals, Alberta Human Rights Commission, acted as a judge in a mock administrative law hearing at the Annual Intensive Advocacy Seminar sponsored by the Legal Education Society of Alberta. The tribunal hears evidence in an adjudicative setting and observes counsel appearing before it with a view to critiquing counsel's performance at the end of the hearing. The seminar is designed to allow lawyers to hone their advocacy skills and benefit from feedback received from more experienced administrative law lawyers and judges.

  • Human Rights in Employment Forum Series: Janice Ashcroft, Q.C., Senior Legal Counsel, Office of the Chief of the Commission and Tribunals, Alberta Human Rights Commission, along with Adriana Tulissi, Community Engagement Manager, SU Wellness Centre, University of Calgary, presented at the Accommodating Religious Beliefs in the Workplace on May 28, 2015 in Calgary. Ms. Ashcroft emphasized the importance of providing accommodation for religious beliefs in the workplace and discussed scenarios based on real cases. Ms. Tulissi provided an overview of religious observances and shared examples of accommodation for religious beliefs.

  • Poverty Reduction Summit: On May 7 and 8, 2015, Mr. Robert Philp, Queen's Counsel, Chief of the Commission and Tribunals, Alberta Human Rights Commission, attended and participated in the Poverty Reduction Summit: every city, province & territory working together in Ottawa, Ontario. Mr. Philp, along with Ms. Norma Gunningham-Kapphahn, Executive Director, Saskatchewan Human Rights Commission, led a panel discussion in the workshop Intersection Between Human Rights and Poverty Reduction.

  • John Humphrey Centre for Peace and Human Rights: On May 6, 2015, Mr. Robert Philp, Queen's Counsel, Chief of the Commission and Tribunals, Alberta Human Rights Commission, presented the keynote speech at the Annual General Meeting of the John Humphrey Centre for Peace and Human Rights in Edmonton. The theme of the meeting was Looking Forward: Human Rights in Alberta. Mr. Philp reflected on current trends in human rights in Alberta, highlighted prominent human rights issues, and shared his vision for human rights in the Commission and discussed possibilities for meaningful collaboration.



    Ranya El-Sharkawi, Director, John Humphrey Centre for Peace and Human Rights (JHC), presented Mr. Philp with a tile mosaic titled This is Our Canada, which was made by youth from throughout Alberta.
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    3. Human Rights Education and Multiculturalism Fund:




    The Human Rights Education and Multiculturalism Fund (the Fund) provides grants that support community projects that foster equality and reduce discrimination. These grants assists non-profit organizations, public institutions and communities to address the intersection of human rights and issues such as social exclusion, inequality of opportunity, discrimination, racism and other barriers that limit Albertans' ability to be full and contributing citizens.

    Two new grant streams have been launched. Note the deadlines!

     

    • Experience Human Rights Grants: The Experience Human Rights Grant supports short-term projects that encourage engagement in and contributions toward human rights and diversity. The deadlines for this grant are July 15 and October 1, 2015. You can read more about the Experience Human Rights Grants.

    • Community Inclusion Grants: The Community Inclusion Grant helps municipalities build inclusive communities and advance their strategies associated with the principles of Welcoming and Inclusive Communities (WIC) or as a signatory to the Canadian Coalition of Municipalities Against Racism and Discrimination (CMARD). The deadline for this grant is September 15, 2015. You can read more about the Community Inclusion Grants.

    The Human Rights Project Grants continue to assist non-profit organizations and public institutions to make changes so that all Albertans have the opportunity to participate in the cultural, social, economic and political life of the province without discrimination. The next deadline for this grant is October 1, 2015. You can read more about the Human Rights Project Grants.

    Recently completed projects that were supported by the Fund:

     

    • The Southern Alberta Individualized Planning Association (SAIPA) of Lethbridge collaborated with individuals with disabilities, their families and guardians, service providers and community members to develop educational materials and a DVD titled Know Your Rights. While the materials were designed for adults with developmental disabilities, the plain language and short segments have value for anyone who would like to learn about human rights under the Canadian Charter of Rights and Freedoms and the Alberta Human Rights Act. The facilitator and participant guides are divided into nine separate sections with suggested learning activities. 
    The Centre for Public Legal Education Alberta (CPLEA) developed  resources that provide information about employment practices and discrimination in the workplace. The webpage Your Rights at Work was developed for immigrant youth and features  legal resources in the form of videos, infographics, quizzes and articles that incorporate plain language and humour. CPLEA worked closely with young people from Alberta's multicultural communities to identify topics and develop the resource.

     

     

     

    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 

     

     

    Alberta news

    1. School Act amended to promote equality and non-discrimination:
    Bill 10, An Act to Amend the Alberta Bill of Rights to Protect our Children, received Royal Assent on March 19, 2015 and came into full effect on June 1, 2015. From the Alberta Education website: "
    The legislation promotes a welcoming, caring, respectful and safe learning environment that respects diversity and fosters a sense of belonging. The Act amends the School Act to promote equality and non-discrimination with respect to organizations in schools such as gay-straight alliances (GSAs) and queer-straight alliances (QSAs). Highlights of the new legislation include: (1) amendments to the School Act that include a definition of bullying and acknowledge that all education stakeholders have a responsibility to ensure schools are welcoming, caring, respectful and safe; (2) requiring boards to allow students to set up gay-straight-alliances (GSAs) or queer straight alliances (QSAs) in their schools; and (3) enshrining sexual orientation, gender identity and gender expression in the Alberta Bill of Rights as protected grounds from discrimination."

    PUBLICATIONS AND RESOURCES

    1. Tools for engaging global citizens: The website The Global Hive offers tools for engaging global citizens. From the website: "The Global Hive Toolkit is designed to assist the efforts of public engagement practitioners working in Canada: NGO staff, volunteers, international development workers, teachers, youth, campaigners, activists, artists, policy makers - in short, everyone who works to engage others on global issues." 

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