Many fundamental human rights issues come before the courts. In 2000, Canada's learned judges were active in exploring the evolving meaning and extent of equality under the law.

The courts continued to show leadership in clarifying the rights of persons with disabilities. In an important case that originated as a complaint to the Canadian Human Rights Commission, the Federal Court affirmed a tribunal decision that the federal government failed to accommodate the needs of an employee with a learning disability. In Green v. the Public Service Commission of Canada, Treasury Board and Human Resources Development Canada, the tribunal found that these three departments discriminated against Nancy Green when she was denied a promotion. Ms. Green had not passed a mandatory second language aptitude test and was therefore deemed incapable of reaching the level of second language proficiency required for promotion. However, her results in the test were due to a learning disability, dyslexia in auditory processing.

The Federal Court agreed with the tribunal that the departments should better accommodate employees with learning disabilities. Recommended steps included training employees to accommodate people with learning disabilities and creating an alternative method for testing the second language aptitude of people with learning disabilities. The Commission has been advising the departments on the development of a training program.

In three cases from Quebec, the Supreme Court ruled that perceptions about a person's abilities can pose a barrier equal to real physical limitations. The complainants in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand(City),Réjeanne Mercier, Palmerino Troilo and Jean-Marc Hamon, were either refused jobs or dismissed from their positions because of real or perceived medical conditions, even though these conditions did not prevent them from performing their duties. The court was very clear in its ruling that employers cannot refuse employment to persons who have disabilities, ailments or physical anomalies that they fear may be problematic in the future, when they pose no current problems.

The Ontario Court of Appeal has emphasized that employers must be able to justify drug testing. In Entrop v. Imperial Oil, the court was asked to consider whether Imperial Oil's alcohol and drug test is discriminatory on the basis of disability. The court adopted the analysis set down by the Supreme Court in the Meiorin and Grismer cases to determine whether testing was a reasonable requirement. Its conclusions hinged largely on whether testing can demonstrate that individuals are capable of performing the duties of their position. In the court's view, since alcohol testing can show actual impairment, it can be justified as long as the sanctions for a positive test are tailored to the individual situation. Random and pre-employment drug testing, on the other hand, does not provide information on the individual's capacity to perform a job and is therefore, according to the court, not justifiable.

The Commission's 1999 policy on drug testing allows for testing in limited circumstances. In light of the developments just described, the Commission is reviewing this policy to ensure that it is consistent with the current interpretation of the law.

A case of immediate and direct concern to the Commission was a judicial review decision by the Federal Court of Canada in a pay equity case involving Bell Canada and many of its female employees. As discussed further in the chapter on "Protection of Human Rights," Bell challenged the impartiality of the tribunal appointed to hear this matter. The court found that there was a possibility that a tribunal might not be impartial, and consequently suspended the proceedings of the tribunal. The Commission has appealed the decision. Meanwhile other tribunals have suspended their proceedings, awaiting a determination by the higher courts as to whether the bias issue raised by the Federal Court is valid.

This development is particularly troubling for the Commission. It was only two years ago, in 1998, that the government amended the Canadian Human Rights Act to address potential bias issues raised by a previous Federal Court decision arising from the same case. Now, with a renewed appeal process that may take several years to come to a final resolution, many important human rights cases are being delayed.

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