Religion

Religion is not only a system of ideas, French sociologist Émile Durkheim observed a century ago. It is a part of life, and a part of life in the workplace as well. Accommodating the needs of employees who observe religious days of obligation other than traditional Christian holy days has been the subject of several cases, most recently in Richmond v. Canada (A.G.). The issue before the Federal Court of Appeal was whether the federal government must provide Jewish and other non-Christian employees with paid leave to observe their religious holidays. In 1992, Sheldon Richmond was refused three days' leave with pay for the Jewish high holidays, Rosh Hashana and Yom Kippur. Mr. Richmond was told that while the government would not grant him "special leave" with pay for religious observance, he could take unpaid leave with several options to make up the loss of pay, including using annual or compensatory leave or by working extra hours. Richmond and 15 other employees, who had been refused similar requests, filed grievances claiming religious discrimination, contrary to the "non-discrimination" clause of their collective agreement. Both the Public Service Commission adjudicator and the Federal Court rejected their cases, finding that the employer had met its duty to accommodate. Richmond and the other grievors appealed.

In a split decision, the Federal Court of Appeal held that while the policy of providing paid leave for Christian holidays and not for other religious holidays was discriminatory, the options to make up the loss of pay constituted reasonable accommodation.

The Court cited the Supreme Court decision in Chambly v. Bergevin which held that providing all employees with paid leave only for Christian holidays, though neutral on its face, had the effect of discriminating against religious minorities. The Federal Court of Appeal unanimously agreed that the employer's "Designated Paid Holidays" calendar, which included Christmas and Easter, amounted to adverse-effect discrimination. The Justices, however, differed on the issue of whether the employer had reasonably accommodated its employees.

Madam Justice Desjardins, for the majority, held that "the employer in order to establish reasonable accommodation, had to demonstrate that 'real efforts' had been made, short of 'undue hardship' so as to eliminate the adverse effect discrimination suffered by its employees." In Madam Justice Desjardins' opinion, compelling the government to use discretionary special leave provisions of the collective agreement for the observance of religious holidays would constitute undue hardship. Serious disruption of the collective agreement would result if Jewish employees were entitled to three more days of mandatory leave with pay for religious holidays than Christian employees. The judge dismissed the argument that non-Christian employees might work during Christmas and Easter and then take paid leave during their own religious holidays. She held that it would be a breach of the collective agreement and the Canada Labour Code to expect the employer to open its offices on Christmas and Good Friday, since all employees are entitled to these holidays. While the holiday schedule is discriminatory, the government is under no obligation to provide paid leave for non-Christian holidays where it offers affected employees the opportunity to make up the absences without loss of pay.

Mr. Justice Robertson dissented, finding that unless undue hardship is established, the employer must accommodate the needs of the religious minority. In this case the government had not produced any evidence that the integrity of the collective agreement or employee morale would be undermined, or that granting special leave for religious holidays would result in financial or operational hardship. The Supreme Court denied an application by the employees for leave to appeal, and so this decision stands as the most recent authority on this question.

Race, Colour, National or Ethnic Origin

Most complaints of racial discrimination involve isolated instances of discrimination against a single individual. However in an important decision released in March of this year, a federal human rights tribunal found discrimination within an entire government department. After reviewing a discrimination complaint filed by the National Capital Alliance on Race Relations, an Ottawa-based community group, a tribunal concluded that visible minority employees at Health Canada had been subjected to systemic discrimination which hindered their opportunities for career advancement.

The Alliance offered as evidence statistics showing that a disproportionally low number of visible minority employees had progressed into senior management positions. Statistical evidence is helpful in cases of this type because "systemic discrimination is not motivated by a conscious act, it is more subtle to detect and it is necessary to look at the consequences of, or the results of, a particular employment system." Here, the tribunal found that visible minority groups were significantly under-represented in both senior management and the Administrative and Foreign Service categories, and were "bottle-necked" in scientific and professional jobs.

Specific discriminatory staffing and promotion practices were also noted. Surveys of Health Canada employees indicated that white employees were twice as likely to be asked to serve on selection boards as non-white employees "for reasons that have little to do with the level of education, experience or responsibility". Visible minorities were also given fewer opportunities to acquire the experience necessary for management positions. Minority employees had less chance of being appointed to acting positions with supervisory responsibilities. Acting appointments were often made "without competition and on an informal basis. When the positions were filled on a permanent basis, the person acting in the job was usually appointed to the position". White employees were informed about training opportunities and acting appointments by their supervisors, whereas visible minorities were required to be "more self-reliant" in seeking these opportunities.

The tribunal was also presented with an internal departmental memorandum detailing discriminatory attitudes held by some senior managers. The memo quotes an Assistant Deputy Minister as saying "The cultural differences are minimized when we are looking for the scientific approach. However when we start looking for soft skills such as communicating, influencing, negotiating quite often their cultural heritage has not emphasized these areas and they are at a disadvantage As well we do business in the North American way -- consensus reaching model -- which to some cultures is very foreign."

In a unanimous decision, a three-member panel of the Human Rights Tribunal concluded that staffing practices of Health Canada had a disproportionately negative effect on visible minorities, which the tribunal found discriminatory. Since Health Canada called no evidence to explain the reasons for the under-representation in senior management, the complaint was upheld.

Health Canada argued that the tribunal did not have the jurisdiction to order an "employment equity" remedy, and that it only had the power to make a "cease and desist" order. The tribunal rejected the department's argument, stating that "an employment equity order was necessary in this case to prevent future systemic discrimination and to eliminate past barriers arising out of the discriminatory practices identified."

The tribunal ordered Health Canada to implement a wide range of corrective measures, including setting numerical targets over the next five years. During that period, 18 per cent of senior management promotions and 16 per cent of Administrative and Foreign Service promotions will go to members of visible minorities. Similar targets exist for the appointments of minorities to acting positions in senior management.

Health Canada must also implement mandatory diversity and employment equity training for all senior managers and human resource specialists, and develop recruitment sources for members of visible minorities, including advertising in ethnic newspapers.

Unfortunately recent changes to the Employment Equity Act will prevent a tribunal from ordering similar goals or corrective measures in the future, even where a complaint is substantiated.

In May, the Federal Court reviewed the case National Health and Welfare v. Chander and Joshi. Dr. Satish Chander and Dr. Narendra Nath Joshi were employed as research scientists with Health Canada. When a competition was announced for positions in the Infection and Immunology Division, both men applied. Although they were the only two in-house applicants, both were rejected. The competition was subsequently opened to the public and the positions were filled by other applicants, including one visible minority candidate. In a split decision, the tribunal found that Health Canada had discriminated against Dr. Chander and Dr. Joshi by finding them unqualified for positions in which they had been satisfactorily performing on a temporary basis. The tribunal found that both men were qualified, yet the department had continued to seek candidates with equivalent qualifications.

Health Canada's application for judicial review was dismissed by the Federal Court. Of practical significance is the Court's ruling on the appropriate test to be applied where an employer refuses to hire or promote. First it must be shown that the complainant applied for the position, was qualified and was rejected. Second, where someone other than the complainant is hired in a process subsequent to the one in which the complainant competed, as in this case where an open competition followed a closed competition, it is not appropriate to compare the complainant with the successful candidate. Rather the determining factor is whether the complainant belongs to a group protected under the Act (for example on the basis of religion, colour or race), and the employer continued to seek applicants with the complainant's qualifications. Even where an employer hires a person of the same race as the complainant, perhaps to avoid charges of racial discrimination, the original decision can be tainted with racial bias.

The Court recognized that evidence of racial discrimination is often difficult to unearth. Given that the tribunal had an opportunity to hear all the evidence, the Court was unwilling to disturb the tribunal's findings of fact and credibility where they are supported by some evidence, even double hearsay, or are founded on reasonable inference.

The Court was also unwilling to change the tribunal's remedy, which included reinstatement and damages. It held that the complainants should be awarded the position, rather than being required to compete again, where it had been established that they were qualified for the position.

Age

Age discrimination cases usually involve claims of differential treatment such as termination or the refusal to hire based on age, or the perennial debate about mandatory retirement. This year there were cases on both of these topics.

In March, the Federal Court of Appeal confirmed that members of the Canadian Forces (CF) who were forced to retire in the 1980s were victims of age discrimination. Between 1986 and 1988, ten complaints were filed with the Canadian Human Rights Commission by CF members alleging that they were deprived of employment opportunities because of their age. Captain Martin had been told that he would have to retire at age 55, and nine of the others had been released from the Canadian Forces upon reaching the compulsory age of retirement. In August 1992, a human rights tribunal ruled that the CF's compulsory retirement age was a discriminatory practice, concluding that age was a poor indicator of health risk and that individual testing was feasible. Following an appeal by the CF, the Federal Court Trial Division upheld the tribunal's decision. The CF then asked the Federal Court of Appeal to review the case.

The Federal Court of Appeal ruled that neither the tribunal nor the Trial Division had erred in its decision, as individual testing was a reasonable alternative to mandatory retirement. The evidence also supported the finding that compulsory retirement was not a bona fide occupational requirement. As an alternative to forcing all members to retire at a fixed age, the Canadian Forces could have put a system of testing in place to ensure safety.

Each of the nine complainants who was forced to retire will receive compensation for lost wages ranging from approximately $5,000 to $200,000.

In a case involving differential treatment, a human rights tribunal has ruled that a group of 26 pilots and flight attendants who lost their jobs were victims of age discrimination. Employees of the Executive Flight Service were responsible for transporting senior politicians and VIPs. In 1986, the flight service was transferred from the Department of Transport to the Department of National Defence as a cost-saving measure. The employees of the flight service were informed that they could not be integrated into the new service because, on average, they were too old. In particular, eight of the 20 pilots were older than 55, the mandatory age of retirement in the Canadian Forces. Despite assurances that there would be no layoffs as a result of the transfer, the flight staff were forced to take an early retirement or were reassigned to non-flying positions. The employees filed complaints with the Commission alleging age discrimination. In 1992 a human rights tribunal dismissed the complaints, ruling that age had not been a factor in the treatment of the flight staff. The Commission applied for judicial review of the decision and in 1994, the Federal Court overturned the tribunal's decision and returned the complaint to a new tribunal for reconsideration. This decision was upheld by the Federal Court of Appeal and the case was sent back for a new hearing.

In January of this year, a tribunal unanimously held that the decision to make the flight service an exclusively military operation, though based partly on legitimate factors such as economy and efficiency, was tainted by considerations of age.

The tribunal also held that age could not be justified as a bona fide occupational requirement of a pilot or flight attendant. Although the Department of National Defence had legitimate concerns that bringing in civilian personnel would have a negative effect on cohesion and the morale of the members of the armed forces, any difficulties in merging the two groups could be overcome "with strong and effective leadership." Indeed, many of the concerns about the flight service employees' ability to adapt to change, to work with others and to fit into a new organization were based upon stereotypical assumptions related to the age of the complainants.

The tribunal ordered the CF to pay each of the complainants $3,000 plus interest, for injury to feelings and self-respect. Only one complainant was awarded lost wages, because the others had either retired or found employment that paid more than they would have earned in the military.

In October, a human rights tribunal dismissed age discrimination complaints filed by two men against the Canadian Forces. Robert Dorais and Louis-Paul Pelletier, cadet instructors at the CF base in Saint Hubert, each filed a complaint with the Canadian Human Rights Commission alleging that their supervisor wanted to replace them with someone younger.

Mr. Dorais and Mr. Pelletier retired in the 1970s after long and successful military careers in the CF. They were then rehired to work with the cadets as headquarters staff officers. In 1993, the two men were told that their contracts would not be renewed because "new blood" was needed.

In its decision, the tribunal found that the CF had provided a reasonable explanation for its decision, that there was no pretext involved, and that in fact, age did not play a role in the decision not to renew the complainants' contracts. The tribunal stated that "From the complainants' point of view, the situation they experienced is unjust and unacceptable. They were long-time and loyal employees of the CF once their work was completed they were told they were no longer needed. It is possible that this is unfair and unacceptable to the complainants. However, it still does not mean that the reason, in whole or in part, that their contracts were not renewed was due to the fact or the perception that they were too old to properly perform their duties."

Although the supervisor had used words alluding to age, "new blood" and "younger staff", there were several non-discriminatory reasons -- including restructuring, personality and performance -- which contributed to the non-renewal of the complainants' contracts. The newly reorganized structure "automatically eliminated candidates from the Regular Force, whatever their age", and therefore the "decision had nothing to do with the ages of the complainants."

Sex

There are several pervasive discrimination problems which human rights law has made some strides in addressing, but which are by no means eliminated. Prime among these is sexual harassment, and two unyielding truths about that issue remain: it still occurs far too often, and proof of a specific case depends to a large degree on difficult choices about the credibility of the two parties, since so often this behaviour is not witnessed by others. A case this year illustrates the latter point.

By a 2­1 margin, a human rights tribunal dismissed the complaint of Taylor Hewstan, who alleged that she was sexually harassed by a co-worker at a Vancouver radio station: "Doc Harris" Auchinleck, a radio talk-show host at CFUN Radio Vancouver. She claimed that he repeatedly kissed and hugged her despite her objections. Part of her job was to write comedy skits with the respondent at his home studio. This was done on a computer kept in his bedroom. She alleged that on one occasion, Mr. Auchinleck jumped on her and kissed her while she was sitting on his bed. Ms. Hewstan complained to the station management about the harassment and her working arrangement was changed, but shortly thereafter both Auchinleck and Hewstan were terminated because "ratings were down".

In support of its case, the Commission had sought to rely upon the evidence of two other women. Jaylene Larose, who, like Hewstan, had once shared hosting duties with Auchinleck, testified that she was pressured by Auchinleck to have a sexual relationship with him because he believed that it would improve their "on air" relationship. She had also complained to their employer about his inappropriate remarks and behaviour. A second woman, Terri Theodore, described a "consensual relationship" that was "almost dating".

The majority refused to consider "similar fact" evidence. In their view, "if similar fact evidence is merely put forward to cast doubt upon an accused character, or to imply or establish a propensity on the accused's part towards committing the acts in question, it is not admissible and should not be relied upon, even in the more relaxed setting of a human rights tribunal. The proper test for the reception of such evidence is whether it is sufficiently similar to the facts alleged before the tribunal when balanced against the prejudice caused by its admission."

Instead, the majority used the testimony of Ms. Larose to challenge both the credibility of the complainant's allegations and her perception of the incidents at the time they occurred. The majority found that Ms. Hewstan had not been concerned about Auchinleck's "fairly innocuous conduct" until she learned her predecessor was considering laying a sexual harassment complaint. "It seems clear that from the point that Ms. Hewstan learned of Jaylene Larose's experiences with [Auchinleck], Ms. Hewstan considered even otherwise innocuous remarks to be sexually charged, personal and inappropriate," they said.

The tribunal concluded that the hugging and kissing by Mr. Auchinleck ceased as soon as the complainant made it clear that this behaviour was unwelcome. As for the alleged incident in Mr. Auchinleck's bedroom, the majority emphasized that "while something may have happened between Mr. Auchinleck and Ms. Hewstan in the bedroom at some point during their working relationship, whatever it was, we are inclined to believe the incident was not as significant as Ms. Hewstan subsequently made it out to be."

The majority also found no evidence that Mr. Auchinleck set out to sabotage the complainant's work after she asked him to cease physical contact. It concluded that, on the balance of probabilities, sexual harassment did not take place and dismissed the complaint.

Although the decision rests largely on an assessment of the complainant's credibility, the tribunal's comments on similar fact evidence are disappointing. Similar fact evidence has proven to be crucial in cases of sexual harassment, often because former employees are in a better position to testify openly about prior similar conduct by the alleged harasser. If the use of such evidence is unduly restricted by inappropriate tests founded on criminal law standards, it may become very difficult to establish harassment claims in the future.

From the perspective of the Commission, the minority report written by the dissenting member of the tribunal seems to reflect a much greater awareness of the nature of sexual harassment. The third tribunal member accepted the complainant's evidence about the incident in the bedroom, despite the lack of corroborating evidence, and concluded that there was "inappropriate language and touching" which warranted a finding of sexual harassment.

Although the employer was not a party to the complaint before the tribunal, the dissenting member spent some time addressing the employer's responsibility to provide a safe working environment for its employees. Given that the employer was aware of an outstanding complaint of sexual harassment against Mr. Auchinleck, the member criticised the station for making it a condition of Ms. Hewstan's employment that she work with Mr. Auchinleck in his home studio. "With the extension of the workplace into the home, it is incumbent on both employers and their employees/consultants to take necessary steps to provide secure working environments," she said.

A tribunal also dismissed the complaint of a teacher, who said that her employment contract was not renewed because she was pregnant. Cheryl Wall charged that the Kitigan Zibi Education Council discriminated against her when it withdrew a contract offer after she told the school board that she was pregnant and would require maternity leave.

Ms. Wall had been employed as a high-school teacher on a reserve near Maniwaki, Quebec from August 1992 until August 1993. In March 1993, the Director of Education told her he was very pleased with her work and asked her to return for the 1993­1994 school year. She alleges that when she told the director she was pregnant, he replied that she could not take maternity leave as it would be impossible to replace her for such a short period of time.

The tribunal, however, accepted the Director of Education's explanation, finding that Ms. Wall's actions were more consistent with her having voluntarily decided not to return to her teaching duties. The tribunal also found that the Education Council had generally exhibited considerable flexibility in accommodating the parenting needs of its employees. No explanation had been offered as to why the complainant would be singled out for discriminatory treatment.

As part of a human rights settlement, all 5,000 Canadian Coast Guard employees must take a course on workplace sexual harassment. Cheryl Bagnell complained that, while working as a ship steward on the icebreaker Louis St. Laurent, she was harassed by a male co-worker who entered her cabin without permission and tried to kiss her.

The Coast Guard has agreed to initiate a continuing training program on human rights and harassment in the workplace for all its employees. In the past, the Coast Guard has offered human rights courses for full-time employees, but until now they have not been mandatory. As part of the settlement of the complaint, the Coast Guard also agreed to pay Ms. Bagnell $5,332 in compensation for wages lost after the incident and $1,000 for hurt feelings.

Marital and Family Status

In 1985, Bill C-31 amended the Indian Act by restoring the status of Indian women who had been disenfranchised through marriage to non-Indians. Shortly thereafter, the Shubenacadie Indian Band received applications for social assistance from non-native female spouses of band members. The Chief and Council of the Shubenacadie Indian Band provided social assistance benefits pursuant to a Master Funding Agreement with the federal government. The Master Funding Agreement required "equitable treatment of all Reserve residents". Darlene MacNutt, John Pictou and Lolita Knockwood filed complaints against the Band, claiming that the Band Council had refused to provide social assistance benefits to non-native spouses residing on the reserve. In 1995, a tribunal held that the Council did not have the discretion to deny social assistance benefits to qualified non-natives who lived on the reserve.

In October of this year, the Federal Court affirmed the tribunal's decision. Though the Band can control residency, it cannot pass by-laws with respect to social assistance benefits once it signed the Master Funding Agreement. The Court found that the Band's decision to deny social assistance benefits to non-natives living on the reserve cannot be justified by reference to any section of the Indian Act. Therefore section 67 of the Canadian Human Rights Act was not applicable. It also held that the Charter does not give the Band Council general immunity from human rights review. Although the decision confirmed that social assistance delivery on the reserve may not discriminate between reserve residents, the Court carefully limited those who may receive these services to those persons having a "personal relationship" with resident Band members. The decision is significant in that it consolidates jurisdiction under the Canadian Human Rights Act over Band Council decisions with regard to services for reserve residents not made under or pursuant to the Indian Act.

In recent years, many difficult equality issues have arisen with respect to the terms or conditions of benefits plans, including both employment benefits and government programs. These often involve difficult questions of balancing the obvious need to define the recipients of a particular benefit, and the claims of those who fall just outside of the line and receive nothing. This year claims relating to marital and family status raised these sorts of issues.

In June, the Federal Court of Canada ruled that the Unemployment Insurance Act, now called the Employment Insurance Act, is discriminatory because it limits certain benefits to parents according to the age of their child. In 1993 Maria Gonzalez filed a complaint with the Commission alleging that the unemployment benefits rules discriminated against parents who adopt children younger than six months old. Ms. Gonzales had taken advantage of the 10 weeks' parental leave provided by the Unemployment Insurance Act, but needed extra time off because her child was sick. Canada Employment and Immigration denied her an additional five weeks of benefits because her child was three months old at the time of the adoption. Under the Employment Insurance Act, parents of children with special needs are entitled to an extra five weeks of parental benefits, as long as the child is at least six months of age. After the Commission sent the case to a tribunal, the Attorney General referred the following question to the Federal Court: is subsection 11(7) of the Unemployment Insurance Act contrary to the Canadian Human Rights Act, in that it constitutes a discriminatory practice based on family status? The Court said yes.

In its decision, the Court noted that there is no rational connection between the age of six months required by the Unemployment Insurance Act and the health of the child. The extent of care a sick child needs cannot in any way be measured by basing it on the age at which the child is introduced into the home. The Court has given Parliament up to 12 months to correct this provision.

Sutherland and King v. Canada is a recent case of the Federal Court of Appeal concerning survivor pension benefits to the spouses of former Canadian Forces members. The case challenged the legislative provisions of the Canadian Forces Superannuation Act and the Defence Services Pension Continuation Act, which place limits on survivor pensions.

The appellants claimed the Acts violated section 15 of the Canadian Charter of Rights and Freedoms because they discriminated on the basis of age or sex. The trial judge concluded that government pension plans were designed to ensure that the costs of plan benefits were reasonable.

The Court of Appeal also dismissed their claim. There was no doubt that both Acts created a distinction in the sense that they referred to age as an exclusion of benefit. However, the majority agreed that the arbitrary age of 60 was used as an equivalent to the normal retirement age. In most pensions, entitlement to benefits, including survivor benefits, is determined at the time of retirement. A person who marries a pensioner after he or she has retired cannot obtain a spousal survivor benefit. If these rules were applied to members of the CF, who generally retire at an earlier age than the rest of the workforce, an unfairness might result, so the statutes governing CF pensions provide that a survivor benefit will be denied where the marriage occurs after the member reaches age 60, or retires. Thus they are not at a disadvantage compared to comparable regimes.

Chief Justice Isaac dissented, arguing that the majority chose the wrong comparison group. Rather than comparing military retirees with non-military retirees, the court should have compared the two groups created by the legislation: surviving spouses who married before 60 with spouses who married after 60. Under this comparison, the legislation created a clear disadvantage; he felt, however, that the discrimination was justified.

As for the Defence Services Pension Continuation Act, the majority held that the Charter did not apply. The Kings had married in 1970 and the Charter's equality guarantee does not apply to events that occurred before 1985. Chief Justice Isaac disagreed on this point also, stating that the Charter applied to Mrs. King because the triggering event for entitlement to survivor benefits is the death of the spouse, not the wedding day. The appellants were also not successful in their sex discrimination arguments. Although the legislation was designed to prevent marriages between an opportunistic younger partner and an older military pensioner, the rules applied to both sexes, and the legislation did not particularly target women.

Disability

In the Eaton and Eldridge decisions discussed earlier, the Supreme Court of Canada noted that the accommodation of differences lies at the heart of the promise of equality for persons with a disability. While this is undoubtedly true in theory, putting it into practice involves a careful case-by-case analysis of particular situations.

In April, Monica Koeppel, an employee with a hearing impairment, won a human rights complaint involving the duty to accommodate against her former employer, the Department of National Defence (DND). Ms. Koeppel was hired as a Central Registry clerk at Canadian Forces Base Winnipeg. Her position involved sorting and distributing mail, filing and answering some telephone inquiries. Before beginning work, the complainant informed her employer that she had a serious hearing loss in both ears and had difficulty using a telephone despite wearing a hearing aid. The complainant's supervisor insisted that she answer the telephone although the stress of doing so caused her migraine headaches. An offer by her co-workers to answer her share of the telephone calls was rejected by her supervisor. Throughout her employment at the base, the only offer made to accommodate her disability was to provide her with a telephone amplification device. Ms. Koeppel rejected this proposal because such a device would merely amplify sound and would not improve her ability to decipher what was being said.

In February 1993, the complainant was advised that she had the option of taking an unpaid leave of absence or resigning. She was told that a transfer to another post was not feasible as no other suitable positions were available. The complainant went on a two-year leave of absence without pay before resigning in June 1995.

The tribunal agreed with the Commission that this was a case of adverse effect discrimination because there was a direct connection between her disability and various actions taken by her employer. The tribunal concluded that DND did not meet the onus of establishing either reasonable attempts at accommodation or that it was prevented from taking further steps because of undue hardship. DND "failed to address what effects Ms. Koeppel's disability would have on her ability to perform the duties of the job It simply assumed that she could answer the telephone in the same manner and with the same efficiency as other employees. As a result, her disability was ignored and she was continually put in a position where she could not meet the expectations of her employer." The tribunal emphasized that the employer had a positive duty to determine how the complainant's disability would affect her capacity to perform her job duties, and to take steps to accommodate her needs.

Of particular significance is the tribunal's recognition of the "secondary" aspects of the complainant's disability. DND had argued that the difficulties experienced by Ms. Koeppel were caused by her attitude and had nothing to do with her disability. In discussing the nature and the extent of the disability, the tribunal analysed whether the sensitivity and resulting irritability and anger exhibited by the complainant were part of her disability. The tribunal accepted the Commission's argument that the "secondary aspects" of the hearing impairment, including stress, must be regarded as part of the disability. It found that a "sensitive employer" should have made its managers aware of the psychological aspects of a permanent disability such as a hearing impairment, and of the need for sensitivity training for co-workers.

The tribunal ordered DND to pay Ms. Koeppel $10,063 in lost wages, her legal costs and $3,000 compensation for hurt feelings. The tribunal rejected the complainant's claims for reimbursement of expenses that were not causally related to the discrimination. These included unpaid sick leave, psychologist's fees, moving and storage expenses, tuition fees and wages lost while attending the hearing.

In February, a tribunal dismissed a complaint that a customs inspector had discriminated against a man infected with the human immunodeficiency virus (HIV). On September 27, 1994, Dana Lawrence disembarked at the Vancouver International Airport after a vacation trip to Amsterdam. During a random inspection, a customs officer discovered an erroneous criminal record notation under the name Lawrence. The customs officer asked the complainant if he had bought or used drugs in Europe. He replied that the only drugs in his possession were medications prescribed for a chronic illness. During the course of the inspection, the customs officer donned rubber gloves, removed vials of medications from his baggage, examined their contents and made disparaging remarks about the number of medications he had in his possession. The inspector insisted that he reveal the nature of his illness, forcing the complainant to disclose that he had HIV.

Relying on the Stadnyk decision for the proposition that it should not consider the surrounding "bad judgment, poor taste, [and] insensitivity" of the customs officer in determining the issue of discrimination, the tribunal found that the complaint was not based on the imprudent remarks pertaining to a non-existent criminal record. As such the case turned on a factual issue: when did the inspector put on the latex gloves? The complainant testified that this occurred after he was forced to reveal that he had HIV. The inspector stated that he put on the gloves after a positive criminal record name-check.

The tribunal found that on the balance of probabilities, the complainant failed to establish a prima facie case of discrimination. Although it found that the complainant was faced with a "series of unpleasant and frustrating invasions of his privacy", it chose to accept the evidence of the customs inspector over the evidence of the complainant on the issue of the gloves. The tribunal did not question the complainant's veracity, but thought that his perceptions of events may have been coloured by "weakness, tiredness, frustration and his extreme sensitivity to the wearing of white latex gloves in that setting".

In October, a human rights tribunal ruled that the formula used by CN Rail to calculate years of service contravened the Canadian Human Rights Act because it unfairly penalized disabled employees. Barry Cramm filed a complaint with the Commission alleging that the collective agreement between the railway and his union, the Brotherhood of Maintenance of Way Employees, discriminated against people with disabilities because the contract unfairly restricted the number of days of disability leave that could be counted in calculating the number of years of service. Mr. Cramm was off work from September 1980 to March 1984 after suffering burns and other injuries in a work-related accident. Because of his injuries, Mr. Cramm did not have the eight years of service necessary to qualify for employment security when the railway closed in Newfoundland in 1988. Under the Employment Security and Income Maintenance Agreement, those who qualified for employment security were entitled to a job or full wages until the age of 55.

The tribunal stated that employment benefits, other than those prescribed by law, do not have to be granted. Once benefits are offered, however, they cannot discriminate against those who are disabled, nor should they differentiate between classes of persons who are disabled. The tribunal found the requirement to work at least one day in a calendar year to be discriminatory because it penalizes persons with long-term disability, who cannot work at least one day in a year. It also found the 100-day limit discriminatory because it treats those with a short-term disability differently from those with a long-term disability.

The tribunal ordered CN Rail to pay Mr. Cramm back wages and to either rehire him or continue to pay his wages until he reaches 55. The tribunal also ordered CN and the union to each pay him $1,500 in damages for hurt feelings. Finally, the employer and the union were ordered to amend the collective agreement so that employees absent from work due to injury, illness or maternity leaves are not adversely affected in the calculation of service. The respondent has launched a judicial review of this decision.

In August, the Federal Court overturned the decision in Mills v. VIA Rail Inc. Last year a tribunal found that VIA Rail had discriminated against John Mills on the basis of disability. Mills, who injured his back while working as a chef on a train, was offered a disability pension after a "paper review" of his medical records concluded that he was "totally disabled". The tribunal held that VIA had failed to conduct a proper workplace evaluation or an on-the-job assessment of Mr. Mills' ability to carry out his duties, nor had it considered what alteration of duties or what workplace adjustments might be undertaken to accommodate his lower back condition.

In its appeal to the Federal Court, VIA disputed the tribunal's interpretation of disability. For VIA, only individuals afflicted with suitably serious and permanent conditions were entitled to invoke the protection of the Canadian Human Rights Act. According to VIA, Mr. Mills' sporadic episodes of back pain did not qualify as a disability.

The Court disagreed with the company's arguments on the meaning and interpretation of disability. Mr. Justice Teitlebaum stated that "Disability, after all, is a question of degree and must be measured in a variety of contexts and situations Moreover, in this instance, the tribunal's finding of disability centres less on Mr. Mills' actual physical condition than VIA's perception of his ailment. If an employer attributes greater limitations to a known condition than are actually present, then the employee has effectively been labelled disabled."

VIA also argued that the tribunal erred in law by failing to specify the type of discrimination at issue in Mr. Mills' case. There are two types of discrimination, direct and indirect, each with its own reasoning and defences. The tribunal stated plainly that VIA had discriminated against Mr. Mills on the basis of disability, but did not elaborate on the nature of this discrimination or turn its mind to the distinctions at law between direct and indirect discrimination.

The Commission countered that the outcome would have been the same whatever label the tribunal put to the discrimination suffered by Mr. Mills, because VIA could offer no justification for its discriminatory practice.

The Court, however, found that although the decision may have been the proper one under the circumstances, the tribunal had committed a reviewable error of law by failing to specify the type of discrimination at issue. The tribunal decision was quashed and the case was referred back for a new hearing.

An interesting case on the issue of accessibility, which may have wider application in the workplace, was released this year by the Manitoba Board of Adjudication. In Beeman v. Marlborough Development Ltd., the Board held that a restaurant discriminated against people with disabilities when it provided a wheelchair lift instead of a ramp. The complaint was filed by T.M. Beeman who found it "humiliating" to use the lift, which had an alarm bell and flashing lights, to gain access to the upscale Winnipeg restaurant.

In the opinion of the board, the Human Rights Code requires the use of a "properly designed ramp", and that "vertical platform lifts should only be employed in very limited circumstances." Ramps allow individuals to move around uninterrupted and unassisted and, as such, generally do not impact negatively on one's dignity. Mechanical lifts, on the other hand, require a person to stop and move onto and off of the lift, sometimes requiring assistance.

Nevertheless, the Royal Crown Restaurant was not obliged to remove the lift and construct a ramp. The adjudicator concluded that the renovations constituted "undue hardship" because it would have meant closing the business for a month, laying off staff and disturbing the other tenants in the building.

In May, the Canadian Broadcasting Corporation announced plans to promote employment of people with disabilities. The plan is part of a settlement of two employment equity complaints filed with the Canadian Human Rights Commission by Michel Montmarquette and the Disabled People for Employment Equity Human Rights Group. They alleged that the CBC used discriminatory employment practices which had an adverse impact on employment opportunities of persons with disabilities. A joint review found that people with disabilities were under-represented in the CBC workforce.

Despite severe budget reductions, the CBC has agreed to an action plan to provide persons with disabilities with employment opportunities. The plan includes hiring goals for the next five years, in addition to specific initiatives to improve the CBC's level of representation of persons with disabilities. It provides appropriate training and will ensure suitable accommodation when required.

Sexual Orientation

On May 9, 1996, Parliament formally added "sexual orientation" as a ground of discrimination under the Canadian Human Rights Act. The Commission, however, has been accepting sexual orientation complaints since the case of Haig and Birch v. Canada was decided in 1992. In June of this year the Federal Court of Appeal, in Nielsen v. Canada Employment and Immigration Commission, went even further to apply Haig retroactively to a complaint filed in 1989. The Court declared that section 3 of the Canadian Human Rights Act should be understood, interpreted and read as including sexual orientation as a ground of discrimination as far back as 1989, and even further to 1982, the year the Charter was enacted.

In November, the Supreme Court heard arguments in the landmark case Vriend v. Alberta. Canada's top court will determine whether the Alberta government's decision not to expand its human rights legislation to include sexual orientation is lawful. At the time of the hearing, Alberta, Newfoundland and Prince Edward Island were the only three provinces without protection for gays and lesbians; in December, Newfoundland added this ground to its Human Rights Code. If the law is found to be unconstitutional, the Supreme Court must also decide whether sexual orientation should be read into the law as a prohibited ground of discrimination.

In 1991, Delwin Vriend was fired from Kings College, a Christian school in Edmonton, because he was a homosexual. The Alberta Human Rights Commission refused to deal with Mr. Vriend's complaint because Alberta's human rights law does not protect gays and lesbians against discrimination. Mr. Vriend challenged the Individual's Rights Protection Act of Alberta in the Court of Queen's Bench, arguing that it violates the equality provisions of the Charter. The trial judge agreed, ordering the words "sexual orientation" to be read into the provincial legislation. In February 1996, the Alberta Court of Appeal overturned the decision, saying that judges should not make decisions that are within the jurisdiction of the legislature.

Eleven intervenors supported Delwin Vriend, including the Attorney General of Canada, the Canadian Jewish Congress, the Alberta Civil Liberties Association, the Women's Legal Education and Action Fund, the Canadian Bar Association (Alberta Branch), the United Church and the Canadian Human Rights Commission. Siding with the Alberta government were the Attorney General of Ontario, the Evangelical Fellowship of Canada, the Christian Legal Fellowship and the Alberta Federation of Women United for Family.

The Alberta government argued that the provincial legislature has the prerogative to exclude whomever it chooses from protection against discrimination. The Court should defer to the legislature's choice not to protect homosexuals from discrimination in the areas of employment, accommodation and services.

Relying on the Supreme Court decision in Egan and Nesbit v. Canada, Vriend countered by arguing that discrimination on the basis of sexual orientation was prohibited under the equality provisions of the Charter. His position is further bolstered by another recent Supreme Court decision, Eldridge v. British Columbia (A.G.), where the Court stated that if a government drafts legislation which directly or indirectly results in discrimination, even if this was not the intention of the government or if the government wanted to remain silent on the issue, a Charter argument will be successful. The Supreme Court's ruling in this case is expected in 1998.

A high-profile legal challenge to the federal and provincial laws that deny benefits to same-sex partners was heard by the Ontario Court of Appeal in October. Margaret Evans and Nancy Rosenberg work for the Canadian Union of Public Employees, and each contributes to a pension plan. They are prevented from getting all the benefits under the plan because their same-sex partners are ineligible for spousal survivor benefits.

Shortly after the union sought to amend its pension plan to give gays and lesbians access to their partner's benefits, Revenue Canada warned that the pension plan would lose its tax-free status under the Income Tax Act. The union was blocked by the restrictive definition of spouse under the Income Tax Act. The union and its two employees turned to the courts to challenge the offending provisions.

Defending the Income Tax Act, the government argued that the law's pension provisions were drafted to protect elderly women in a traditional heterosexual union, who tend to suffer an economic disadvantage -- not gays and lesbians who are more likely to be on an equal financial footing with their partners.

The Canadian Human Rights Commission, an intervenor in the case, argued that sexual orientation is not an indicator of financial need nor should it preclude a person from entitlement to an employment benefit. The Commission has stood down 11 complaints which deal with similar issues pending the outcome of this case.