Litigation

In 2007, the Commission continued to participate in high impact cases in order to further human rights law for all Canadians. The Commission’s involvement in these sorts of cases supports its strategic objective of acting as a proactive and influential catalyst for moving forward on human rights issues. Our successes – and those of many other parties engaged in these cases – advance jurisprudence to support human rights advances for all. And yet, a next step is always necessary: it is important for employers and service providers to inform themselves of these judicial rulings and adapt their future actions accordingly. The Commission’s future focus will encourage these positive shifts.

Some of the cases in which the Commission participated include the following:

Tribunal

Walden et al. v. Treasury Board of Canada et al.

In a decision rendered December 13, 2007, the Tribunal upheld the complaint filed by Ruth Walden et al. (" the Nurses") against the Treasury Board of Canada. The Tribunal found that while the nurses in medical adjudicator positions performed the same or substantially similar work as the medical advisors, they were not classified as health professionals within the Health Services Group in the Public Service.

The Tribunal found that this constituted a prima facie case of discrimination on the basis of sex and that it was not justified as a bona fide occupational requirement.

The Tribunal ordered that the discriminatory practice cease and gave the parties three months to reach an agreement on financial compensation. If an agreement is not reached within three months, the Tribunal will deal with the remedy issue. The Treasury Board applied to have the decision judicially reviewed.

Knight v. Société des Transports des Outaouais (STO)

Following mechanics training and a summer internship, the STO was prepared to hire Mr. Knight full time. During pre-employment medical testing, the complainant revealed that the Commission de la santé de la sécurité au travail (CSST) concluded in 1998 that he has a permanent limitation because he lost a finger during a workplace incident. The STO refused to hire him because of the CSST decision. The Tribunal concluded that the STO had failed to fulfill its obligation to accommodate the complainant. This decision established the precedent that the Tribunal is not bound by a decision made by the CSST.

Jim St. John v. Canada Post Corporation

The Tribunal found that Canada Post had systemically discriminated against disabled employees, contrary to section 10(a) of the Canadian Human Rights Act, by refusing to fill positions vacated by employees who had taken leave. This policy, known as "no backfilling," prevented Canada Post from identifying and assigning work to the complainant, thereby denying him the opportunity to complete his shift and to be paid his regular wages.

Further, the Tribunal found that Canada Post’s policy of refusing to offer a choice of leave to disabled employees sent home during periods of low mail volume was systemically discriminatory.

On another point, the Tribunal found that Canada Post’s "no lay-off" policy, whereby employees are not to be laid off for the day due to shortage of work, was not applicable to situations where Canada Post sent home disabled workers unable to do the available work.

Bignell-Malcolm v. Ebb and Flow First Nation

The complainant, Ms. Bignell-Malcolm, alleged that in 2003, Ebb and Flow Indian Band (EFIB) refused to hire her as Director of Education because she was Cree rather than Ojibway and that this refusal constituted discrimination on the basis of her race and ethnic or national origin, contrary to section 7(a) of the Canadian Human Rights Act.

The Tribunal found that a prima facie case of discrimination was established: the complainant was qualified and was offered the job. The offer was subsequently rescinded, and someone less qualified was hired instead. The Tribunal awarded the complainant lost wages of approximately $50,000. It also awarded $7,000 for pain and suffering, half of the legal fees for the hearing, other amounts for expenses incurred, and interest. The Tribunal also awarded the complainant $5,000 in special compensation due to the "deceitful manner in which the job was rescinded."

Lavoie v. Treasury Board of Canada (awaiting decision)

The complainant and the Commission argue that the Treasury Board’s policy on acquiring indeterminate status after three years on term has an adverse impact on women on maternity leave as such leave period is not included in the calculation of the length of service.

Warman v. Wilkinson 2007 CHRT 27

In a decision rendered on July 10, 2007, the Tribunal upheld the complaint filed by Mr. Warman against Mr. Wilkinson but dismissed the complaint against the Canadian Nazi Party. The Tribunal found that Mr. Wilkinson communicated messages through a website that were likely to expose individuals to hatred and/or contempt on the basis of religion, sexual orientation, race, colour, national or ethnic origin, or disability. The Tribunal agreed with the Commission that: "the content of the hate messages was both vicious and extreme...not only did the messages attribute numerous and varied criminal acts to the [targeted] groups, described them as corrupt and devious, but some messages went so far as to openly advocate the extermination of Jews, Blacks and other non-whites." The Tribunal ordered a penalty of $4,000 and a cease and desist order.

Warman v. Tremaine 2007 CHRT 2

In a decision dated February 2, 2007, the Tribunal upheld the complaint filed by Mr. Warman against Mr. Tremaine. The Tribunal rejected the respondent’s arguments that Internet postings were not public and did not expose individuals to hatred because they were posted on a website where like-minded people communicated amongst themselves. The Tribunal found the mere fact of putting postings on the Internet, which is accessible to almost everyone, was sufficient to expose individuals to hatred. The Tribunal found that Mr. Tremaine communicated messages that were likely to expose individuals to hatred or contempt, contrary to section 13, and ordered the respondent to cease the discriminatory practice and to pay a penalty of $4,000.

Warman v. Beaumont 2007 CHRT 49

In a decision rendered on October 26, 2007, the Tribunal upheld the complaint filed by Mr. Warman against Ms. Beaumont. The Tribunal held that the respondent communicated messages that were likely to expose individuals to hatred or contempt. The Tribunal found that Ms. Beaumont "repeatedly used highly inflammatory and derogatory language with respect to several groups, based on their religion, race, national or ethnic origin, or sexual orientation." The Tribunal held that section 13 addresses all hateful messages that are communicated on the Internet and rejected the respondent’s arguments that she did not expose individuals to hatred because she used the derogatory language only among her circle of friends and not in front of the targeted group. The Tribunal ordered Ms. Beaumont to pay the sum of $3,000 in special compensation and ordered her to cease the discriminatory practice and to pay a penalty of $1,500.

Federal Court

Canadian Forces v. Buffet et al.

The Federal Court upheld a Tribunal finding that the Canadian Forces’ funding of fertility treatment discriminated against men on the basis of sex. The Tribunal’s award was modified to provide funding restricted to the treatment performed on the male complainant.

CPC v. PSAC (ongoing)

The Commission has appeared before the Federal Court to defend the decision of the Canadian Human Rights Tribunal upholding the pay equity complaint in this matter.

CHRC v. Air Canada et al. (ongoing)

The Commission has applied for judicial review of the Canadian Human Rights Tribunal’s decision upholding the mandatory age of retirement for Air Canada pilots.

Birkett v. CHRC and Sue Goodwin

This judicial review decision upheld a Tribunal decision, which had found that the complainant was sexually harassed and had awarded her $5,000 in compensation. The respondent applied for judicial review, alleging the Tribunal hearing was biased and unfair. The Court noted that at Tribunal neither party was represented and the CHRC did not appear, and that as a result the Tribunal member had played a more active role than usual. However, the Court agreed with CHRC submissions in finding that the Tribunal Chair was unbiased and "scrupulously fair and helpful to both parties" while holding the hearing. The Court concluded that the Tribunal decision was not unreasonable on the facts or the law, and the application for judicial review was dismissed.

Federal Court of Appeal

Pankiw v. CHRC

A unanimous Federal Court of Appeal decision confirmed a Tribunal decision that Members of Parliament enjoy no immunity from the Canadian Human Rights Act when sending householders to constituents.

Chopra v. Health Canada

In a decision dealing with the remedy that can be awarded by the Canadian Human Rights Tribunal, the Federal Court of Appeal found that significant deference is owed to the Tribunal with respect to the exercise of its remedial authority.

Supreme Court of Canada

The Supreme Court of Canada granted the Commission leave to intervene in Honda v. Keays, a case dealing with the common law court’s jurisdiction to award punitive damages for breaches of human rights legislation. The hearing is scheduled for February 20, 2008.

Council for Canadians with Disabilities v. VIA Rail

In Council for Canadians with Disabilities v. VIA Rail, the Supreme Court issued a milestone decision for human rights law in Canada and for the accessibility of persons with a disability. The Court confirmed the decision of the Canadian Transportation Agency that ordered VIA Rail to make its new Renaissance rail cars accessible to persons with disabilities. The Court further agreed with the Commission (which had intervener status) that the Canadian Transportation Agency and all administrative tribunals are required to interpret legislation in a manner consistent with human rights law.

The Commission intervened in this matter to argue that human rights norms, and the duty to accommodate in particular, are paramount and must be applied by every decision-maker in dealing with human rights issues. The Court stated, "VIA cannot now argue that it was entitled to resile from these norms because it found a better bargain for its able-bodied customers. Neither the Rail Code, the Canadian Transportation Act, nor any human rights principle recognizes that a unique opportunity to acquire inaccessible cars at a comparatively low purchase price may be a legitimate justification for sustaining inaccessibility. In the expansion and upgrading of its fleet, VIA was not entitled to ignore its legal obligation and public commitments."

Who Makes Human Rights Decisions?

A recent trend of expanding the fora for bringing forward human rights issues provides enhanced access to human rights protections. This trend has developed through case law and legislation.

Case Law

Recently, a number of judicial cases (summarized below) have confirmed that in addition to human rights commissions, there are other venues for bringing forward human rights issues. These include arbitrators, grievance procedures, the Canadian Transportation Agency, and a provincially created tribunal.

This trend began in the case of Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, where the Supreme Court of Canada held that human rights codes were incorporated into collective agreements, therefore granting arbitrators the authority to enforce human rights obligations. The fact that human rights commissions had greater expertise than labour arbitrators regarding human rights violations was an insufficient basis on which to find that an arbitrator did not have the power to enforce the rights and obligations found in human rights legislation.

In Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30, the Supreme Court of Canada determined that a complaint of discrimination and harassment that arose in the context of a claim for constructive dismissal fell within the grievance procedure established under the Parliamentary Employment and Staff Relations Act. The system of redress in the Parliamentary Employment and Staff Relations Act was found to run parallel to the enforcement mechanisms under the CHRA.

In the case of Council of Canadians with Disabilities v. VIA Rail [2007] 1 S.C.R. 650, 2007 SCC 15, the Canadian Transportation Agency was found competent by the Supreme Court of Canada to consider human rights law when carrying out its statutory mandate. In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, a provincially created tribunal was found to have the jurisdiction to consider human rights legislation in rendering its decisions.

Legislation

In the new Public Service Labour Relations Act, S.C. 2003, c. 22, and Public Service Employment Act, S.C. 2003, c. 22, Parliament has also conferred jurisdiction on the Public Service Relations Board and the Public Service Staffing Tribunal to interpret and apply human rights legislation. At the same time, Parliament confirmed the expertise of human rights commissions in these matters by granting them intervener status in proceedings before these bodies.