Public Interest Litigation
The Commission’s focused litigation strategy allows it to support the parties at pre-tribunal mediation, while it concentrates on vigorously pursuing high-impact, public interest cases before the Canadian Human Rights Tribunal. On a case-by-case basis, the Commission determines the scope and nature of its participation before the Tribunal after assessing such factors as whether the case raises broad policy issues, relates to major policy concerns, or raises new points of law. The Commission can also intervene in precedent-setting cases before courts and administrative tribunals dealing with human rights issues.
Commission counsel continued to participate in all mediations held by the Tribunal and have been very successful in assisting the parties to reach settlements as an alternative to adjudication. Indeed, in 2006, 62 cases were settled with the assistance of the Commission, representing 86% of the Tribunal cases completed in 2006.
Notable legal developments
Following are examples of some of the cases in which the Commission participated at the Canadian Human Rights Tribunal in 2006.
In Buffett v. Canadian Forces, the Commission argued that the respondent’s refusal to grant the complainant funding for a reproductive medical procedure (in vitro fertilization or IVF) constituted adverse differential treatment based on his disability and his sex in breach of sections 7 and 10 of the Canadian Human Rights Act. The Tribunal found that the Canadian Forces did not offer the same benefit to its male members with infertility problems that it is offering to its female members with infertility problems, and therefore established a prima facie case of adverse differential treatment. The Tribunal awarded to the complainant $7,500 in compensation for pain and suffering and ordered the Canadian Forces to amend its policy for the funding of IVF treatments. In 2006, the Tribunal rendered its decision in the case of Bob Brown v. National Capital Commission, which deals with the accessibility of public infrastructure for persons with disabilities. The Tribunal held that it is not reasonable accommodation to force people with mobility impairments to take a detour and that access should be provided as near as possible to the place it is required. The National Capital Commission and Public Works and Government Services Canada have both filed applications with the Federal Court, for judicial review of the Tribunal decision. The Commission is a party to these applications, which are still ongoing. In Gian Sangha v. MacKenzie Valley Land and Water Board, the Tribunal has recognized that refusing to hire a job applicant on the basis that the candidate is deemed to be over-qualified for the job has a discriminatory impact on visible minority immigrants. This particular case dealt with the differential impact on this group of the employer’s qualification criteria which exclude candidates on the basis of over-qualification. What began as a complaint based on overt racism developed into a very detailed analysis of a problem of systemic discrimination based on the barriers to employment faced by highly trained visible minorities. In the judicial review application from a preliminary jurisdictional decision of the Tribunal in Keith Dreaver et al. v. Jim Pankiw, the Federal Court upheld the Tribunal’s finding that Members of Parliament are not immune from provisions of the Canadian Human Rights Act. It found that the statutory language of the Act is broad enough to encompass statements made by members in householders published and paid for by the House of Commons. The respondent is appealing this decision to the Federal Court of Appeal. In Brooks v. Fisheries Canada, the Federal Court of Canada confirmed that the Tribunal has jurisdiction to award legal costs to a complainant whose complaint is substantiated. This has important implications for complainants who choose to be represented by legal counsel. The decision is being appealed.Hate on the Internet
Between 2002 when the Act was amended to include hate on the Internet and December 2006, the Commission dealt with 55 allegations of hate messages on the Internet under section 13 of the Canadian Human Rights Act. Twenty-nine of those cases were referred to the Canadian Human Rights Tribunal for a hearing. The Tribunal has rendered decisions on 12 complaints. In all those cases, it found that the allegation of discrimination was valid and ordered the respondents to take down their sites, refrain from similar activities in the future, and pay complainants for pain and suffering.
The Commission continues to identify complaints dealing with hate messages on the Internet as having significant public interest, and it participated in the hearing of all complaints of this nature before the Tribunal in 2006.
On July 12, 2006, in Canadian Human Rights Commission v. Tomasz Winnicki, the Federal Court imposed a sentence of nine months of imprisonment on Mr. Winnicki for being in contempt of its injunction order. The Court found that the respondent had contravened the injunction to stop posting such messages on the Internet pending a decision by the Canadian Human Rights Tribunal on the complaints which had been lodged. In its decision released on April 13, 2006, the Tribunal found that the respondent had communicated hate messages and ordered him to pay a penalty of $6,000 and to cease communicating the offensive material. In Warman v. Glenn Bahr and Western Canada for Us, Warman v. Craig Harrison and Warman v. Peter Kouba, the complaints were substantiated and the Tribunal ordered the respondents to each pay a penalty which in one case was up to $10,000. The respondents were also ordered to cease and desist the posting of hate messages over the Internet. In another notable development, a March 10, 2006, decision by the Tribunal in the case of Warman v. Kulbashian et al. found that four respondents, including a web-hosting service company, caused hate messages to be communicated. The Tribunal ordered the company to stop posting hate messages and to pay a penalty. In this case, the Tribunal found that the hosting company in question was actively involved in communicating the offensive material and therefore could not benefit from the exemption found in section 13(3) of the Canadian Human Rights Act, which is provided for owners of telecommunication undertakings. The owner of the company has filed an application for judicial review of the Tribunal decision.Participation in other matters
In addition to litigation emerging from complaints filed under the Act, the Commission intervened in several other matters of note deemed to have a public interest impact in other jurisdictions. These included:
A decision dated March 2, 2006, in Balvir Singh Multani et al. v. Commission scolaire Marguerite-Bourgeoys in which the Supreme Court of Canada agreed with the Canadian Human Rights Commission’s submissions with respect to a school board’s duty to accommodate religious beliefs to the point of undue hardship. The Court held that, in the context of this case, the school board’s absolute prohibition of kirpans was not necessary to ensure reasonable safety. As a result, the prohibition did not constitute a minimal impairment of Sikh students’ freedom of religion and was struck down. The Court expressly noted the Commission’s contribution to the legal analysis in the case. While the decision dealt with the circumstances in a particular school, its principles will help clarify the interplay between security and human rights in other contexts. In CCD v. VIA Rail, the Commission participated as an intervener before the Supreme Court of Canada to make submissions on the interplay between the Canadian Human Rights Act and the Canadian Transportation Act in a case dealing with the accessibility of VIA Rail’s new rail cars. A decision is pending. In 2006, the Supreme Court issued its decision in Tranchemontagne et al. v. Ontario (Social Benefits Tribunal). The Court agreed with the Commission and held that the Social Benefits Tribunal is required to interpret its enabling legislation in a manner consistent with the Canadian Human Rights Act.Pay equity
The Commission participated in a number of important pay equity cases. These included the following:
In January 2006, the Supreme Court of Canada released its decision in the pay equity case of Air Canada v. Canadian Human Rights Commission and CUPE. The Court upheld the decision of the Federal Court of Appeal, and confirmed what the Commission has consistently argued: that comparisons for the sake of pay equity may be made between employees of the same company even if they are governed by different collective agreements, so long as they are subject to an employer’s common wage and personnel policy. It its judgment, the Supreme Court of Canada noted that the Commission’s common-sense interpretation of "establishment" is an approach that supports the legislative purposes of section 11 of the Canadian Human Rights Act. It is a landmark decision for pay equity, as it provides much clarity on an important issue which will, in the end, simplify and accelerate the investigation process in this and other cases. The Court dismissed Air Canada’s appeal with costs against it throughout. The Commission participated in the settlement of the complaints filed by the Personnel Administration (PE) group against the National Research Council of Canada. The complainants alleged that the respondent had engaged in a discriminatory practice since 1991 by paying employees in the female predominant PE group less than employees in the male predominant groups and sub-groups for work of equal value. Through Tribunal-sponsored mediation, the parties have reached a settlement. On May 15, 2006, as a result of a mediation process initiated by the Commission, the parties in the longstanding pay equity dispute, CEP v. Bell Canada, reached a settlement of the complaint. This marked the end of a 14-year-old dispute affecting 4,765 current and former telephone operators.