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IntroductionAlberta’s first human rights legislation introduced in 1972 (Individual Rights Protection Act)Distinction between federal and provincial jurisdiction (s.91 and s.92) – provincially regulated issues addressed through Alberta Human Rights Act, federally regulated issues addressed through Canadian Human Rights ActOverarching goal is to prevent discrimination (see definition from Andrews); emphasis is on effect, rather than intention (not meant to be a punitive function, focus is more ameliorative)Respondents often don’t intend harm (more symptomatic of systemic discrimination, not intentional discrimination) “Importing subjective intent into human rights provisions … defeats one of the primary goals of a human rights statute” (Canada (Human Rights Commission) v Taylor)Human rights legislation is quasi-constitutional; interpreted in a way that advances its objective (however, cannot be interpreted in a way that is inconsistent with legislation – Abella J in New Brunswick)Legislation should be interpreted broadly and purposively (important to embed this in arguments for complainants)Human rights legislation has a basic structure:Protected grounds (characteristics of person)Note there is a lack of uniformity across the country (e.g. gender expression and gender identity only recently inserted into Alberta)Political beliefs, social condition, criminal conviction where a pardon has been granted exist in jurisdictions outside of Alberta Protected areas (workplaces, tenant-landlord relations, etc)Can include publications and notices, goods/services/accommodations, tenancy, equal pay (gender-based), employment practices, applications and advertisements, membership in a trade union or professional associationNot intended to apply in “private” sphere (focuses on public life – applying for an apartment, accessing services, applying for a job)Overarching Legal FrameworkFirst, complainant must prove prima facie discrimination as follows:Characteristic protected from discriminationThey experienced an adverse impact in an area protected by ActProtected characteristic was a factor in the adverse treatment they experiencedNext, burden shifts to respondent to justify conduct within framework of defences (e.g. bona fide occupational requirement, undue hardship) JurisdictionNOT the courts in Alberta; primarily Alberta Human Rights Tribunal (administrative law principles apply, subject to judicial review by courts) Labour arbitrators also have concurrent jurisdiction over human rights issues Models/MechanismsGatekeeping model (Alberta) Investigation of complaint; “threshold” assessment of merit (“reasonable basis to proceed”)Complaint pursued in public interest by Commission (Commission has carriage of complaint – Commission lawyer is distinct from complainant’s lawyer)Process is extraordinarily slow; this is one of the biggest complaints Direct access model (Ontario)No investigative/gatekeeping function (Commission doesn’t pursue complaint, but there may be legal resources the complainant could access; in NWT Commission has status as a party that can make arguments on behalf of public interest)Restorative justice model (Nova Scotia)Areas of DiscriminationLegislation has some limits; not intended to apply to every human interaction (e.g. doesn’t apply to private settings)Areas of discrimination cover major aspects of our lives (workplace, where we live)Interpretation is principled, purposive Overview of AHRA ProvisionsSection 3 – hate speech provisionFocuses on public nature of communications, speechSection 3(2) demonstrates tension between prohibition on hate speech and Charter protection for free expression (Whattcot – flyers from “Christian Truth Activists”)SCC created a very high bar for hate speech (content must be objectively exposing individuals with a certain characteristic to detestation and vilification – emphasizes broader societal impact)Step 1: Would a reasonable person view the express as exposing the group to hatred?Step 2: Does the speech reach the level of hatred or contempt? (extreme manifestation of detestation and vilification)Mischief is to avoid reducing the status of certain individuals reduced in the eyes of the general public Only addressed to public communications, not private communicationsFederal human rights legislation created controversy Standing is about group as a whole Section 4 – services customarily available to public (focus on services available for purchase)Note that grounds of discrimination are not the same for every sectionAge was just added to section 4 as of January 1, 2018Focuses on access to provided services; applies to restaurants, stores, bars, transportation, education, police, government services (all levels), programs, benefits, insurance, medical servicesEncompasses about 10-15% of HR complaints in ABSection 5 – tenancy and rental facilities 5(a) – not outright denial 5(b) – discrimination/adverse treatment in provision of service Section 6 – equal pay provision; only provision that deals with gender equalityNot frequently used because the claims are difficult (same or substantially the same work)Most cases about differences in compensation will primarily be covered under employment discriminationSection 7 – employment practices discrimination Most frequently used provision in AHRA Section 8 – job application processDiscrimination in job application process and hiringSection 9 – membership in trade unions or occupational associations (e.g. Law Society)Section 10 – retaliation Services Customarily Available to Public Every service has its public (Berg), public can be very small Framework:What is the service?Who is the public for that service?What is the relationship between the service provider and the individual? (e.g. is this the type of decision that the public is meant to apply)Not an exercise of discretion University of British Columbia v. Berg, 1993 SCCMost important case for services customarily available to the publicFactsSchool argued that service was “admission” to the school, the academic offerings are a “private” space (SCC rejected this argument)IssueDid the Tribunal have jurisdiction to address this question?Key PrinciplesHuman rights legislation should be read broadly and purposively, but there are still limits; language in legislation cannot be stretched beyond its meaningHuman rights tribunal should not review questions of law; what constitutes a “service customarily available to the public” is a question of lawQuestion of where human rights legislation should fall from a policy basisAnalysis focuses on Legislature’s intent for what the “service” is that they are intending to regulate; every service has its own definition of “public”Word “public” cannot conceivably include “all public” (otherwise it would frustrate the purpose of the legislation); issue of meaningful access to individuals who are included in that publicThe Applicant, as a student within the Faculty, was a member of the “public” as it referred to the key and rating sheet that was made available to other students Gould v. Yukon Order of Pioneers,?[1996] 1 SCR 571 (headnote only)Public and private is a spectrum The Order’s male-only membership policy is distinct from “services, goods and facilities” in the Act; distinction between social and economic organizations (social organizations are not sufficiently public to attract human rights scrutiny)The closer a organization gets to the economic side of the spectrum, the more likely it is that the organization will be in public nature The service offered by the Order (historical documents) is distinct from the membership or the collection process and is offered without discrimination, so the claim must fail See also Marine Drive – private golf course had a special lounge for men; membership committee could decide who would be a member Issue of whether the lounge was a service customarily available to the publicBCCA invoked social/economic spectrum and fell closer to social side of spectrum and found no discrimination; distinguished from Berg in finding that it was a “less public” decisionMoore?v. British Columbia (Education),?2012 SCC?(paras 1-48)This case broadens the scope of the services customarily available to the public and provides a clear test for prima facie discriminationChild with dyslexia could not access remedial help from local school and was referred to diagnostic centre; diagnostic centre was closed by school district and child transferred to a public schoolChild’s father filed human rights complaint against school district on the basis that his son was denied services customarily available to publicTribunal concluded that there was discrimination; trial judge set aside Tribunal’s decision and the Court of Appeal dismissed the appeal The District did no assessment of alternatives for special needs students Case discussed service available to student:If service is special education, there is no distinction drawn (Abella J – special education is means by which students with disabilities access general education)If service is general education, the child was unable to access general education because the remedial help was the means by which he could access general educationDifferent interpretations of “service” could shift into “separate but equal” discussionSimilar to Eldridge – interpreters were means by which deaf individuals accessed medical services SCC allowed appeal on basis that adequate special education is a service customarily available to the publicGovernment of the Northwest Territories v. Portman,?2018 NWTCADemonstrates that “service” cannot be construed overly broadly Issue was whether the Legal Aid’s policy of not funding legal counsel for human rights complaints discriminates against disabled complainants; Commission indicated that budgetary considerations informed this decisionThe Adjudication Panel concluded that the Director’s decision to dismiss the Applicant’s human rights complaint was unreasonableLegal Aid may have a duty to accommodate access to its own system, but if the service is defined as access to the human rights process, Legal Aid does not provide access to that processUniversal legal services are not offered in Northwest Territories; Director emphasized that the “service” was the “opportunity to apply for legal aid” rather than the provision of legal counselLegal Aid Commission made a decision to prioritize criminal, rather than civil matters; provision of legal aid is not equivalent to “complete unavailability” – on this basis, access to funding for legal counsel is not a “service customarily available for the public”However, the duty to accommodate rested primarily on the Commission Employment & Employment Applications These cases show the boundaries of when employment protections are engaged McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCCMcCormick was a partner at the firm who was subject to a mandatory retirement clause in the partnership agreement; partnership agreement said partners must retire from the partnership at age 65 McCormick brought a human rights complaint on the basis of age; key question was the nature of his employment relationship (whether a partner is employed by the partnership to which he is a member) Employment relationship is a question of “dependency” and “control”; in these circumstances, a partner was not an employee – the partner is an employer (not about the nature of partnership itself); less of a power imbalance in these circumstances Legal test is the extent of the control over the conditions of employment and the dependency of the workerEmployment can include independent contractors, but in these circumstances the criteria of dependency and control were not met Partnership is an entrepreneurial relationship; partners are doing business togetherMcCormick had to follow policies, but that is not a loss of control McCormick was not financially dependent on his work, but the compensation reflected his share of profits, rather than a salary In the BC Act, “person” and “employment” are defined (employment defined as master and servant); discrimination is “about employment”Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission,?Director), 2011?ABCACase reflects a common employment relationship in O&G (multiple contractors involved in a job site)Case introduced concept of remoteness and proximity to determine who employer isEmployee tested positive for marijuana and was denied access to Syncrude worksite; he brought a HR complaint against Lockerbie & Hole and Syncrude (note it was Syncrude’s drug testing policy)Syncrude was not the employer in this case; not sufficient closeness between employee and Syncrude to conclude otherwise (despite taking an expansive view of the concept of employment) British Columbia Human Rights Tribunal v.?Schrenk, 2017 SCCEmployee was employed by Omega as an engineer and was working on a project for the City of Delta; Schrenk was a colleague on the project who worked for a different employerComplaint was about Schrenk’s conduct towards employee (racist and homophobic statements); Schrenk was fired and the employee brought a HR complaint against numerous parties Issue: Did Schrenk’s conduct (as a co-worker of a different organization) fall within the purview of employment?Majority concluded that there is discrimination in an employment relationship; focuses on language of BC Act (person may not discriminate “regarding employment”); “person” instead of “employer” indicates that it is meant to be broader than an employer Discrimination just needs to be related to employment relationshipThis analysis avoids an “unduly formalistic” approach and recognizes that employment hierarchies can be complexSchrenk was an unavoidable part of the employee’s employment Abella J concurred but provided a different analysis:Abella’s reasoning is to be applied in Alberta McLachlin J dissented with a more conservative approachAgrees that “person” and “regarding employment” is important, but section is not about ensuring that the workplace is free from discrimination Provision is about employers that have ability to control workplace Para 123 – human rights law is about parties that are responsible for intervening and halting behaviour, not just other individuals on the worksite Note – this case is about who can be a perpetrator, McCormick was about who could be a complainant Retaliation Walsh v. Mobil Oil Canada,?2008 ABCA (only segments relating to retaliation)Example of significant delays in human rights process; every single aspect of this case was litigated Walsh was employed by Mobil Oil; she wanted to be a land agent, but at the time no woman had taken on that role at the company After she filed her human rights complaint, her employer suggested that her performance was faltering and her workload increased; she was subjected to a vague action plan to address her alleged deficiencies Walsh was terminated 4 years after her HR complaint; she then filed a second complaint alleging retaliation In retaliation cases, intent matters because there is a notion of retribution; retaliatory treatment has to be connected to or because of the HR complaint itself (it is subjective in the mind of the person performing the questioned act; the complainant’s view is not relevant)Unlikely that employers admit this behaviour, so the evidence usually focuses on the inferencePrima Facie DiscriminationGeneral process is as follows:Complainant must establish prima facie case of discriminationBurden then shifts to respondent to justify the action or invoke another statutory defence that is availableIn older cases, the legal framework was not as well-defined Two stages need to be distinct because the burden matters; some information is heavily weighted for one partyWhat does a complainant have to do when they appear before a tribunal?O’Malley – states interpretative principles for human rights legislation; emphasizes that human rights law is about effect, rather than intent; provides definition of concept of “adverse effects” or indirect discrimination; provides definition of a “prima facie” case Legal burden – party has an onus to prove a legal entitlement; duty to take some positive step to prove a legal entitlementEvidentiary burden – a tactical/strategic/practical burden, no action is required, but the absence of action could compromise their case because the other party could prove it absent any evidence to the contrary Section 20, Alberta Human Rights ActWho may make complaint 20(1) Any person, except the Commission, a member of the Commission and a person referred to in section 18, who has reasonable grounds for believing that a person has contravened this Act may make a complaint to the Commission.(2) A complaint made pursuant to subsection (1) must (a) be in a form acceptable to the Commission, and (b) be made within one year after the alleged contravention of the Act occurs [limitation period]Ontario (Human Rights Commission) and O’Malley v Simpson Sears Ltd, 1985 SCCFactsO’Malley alleged discrimination on the basis of religion because her work conditions did not allow her to observe the Sabbath on Saturdays; she accepted a part-time role No indication of malice from either party At the Tribunal level, they indicated that there was no discrimination Divisional Court and Court of Appeal upheld Board of Inquiry’s decision to dismiss complaint, stating that they did not intend to discriminateIssueDoes a work requirement imposed against all employees discriminate against the appellant?DecisionAppeal allowed; employment rule found to be discriminatoryRationaleHuman rights law is quasi-constitutional and should be interpreted based on the “special nature of the purpose and enactment” … intended to advance its broad purposesEmployment rule can be “neutral on its face” and affect all employees equally but still discriminate against an individual “Intent to discriminate” is not required in human rights legislation; it is the result or effect that is significant Discrimination can occur even if there is no intentionPolicy can be indirect in its discrimination; does not need to identify individuals based on their particular characteristics In a case of adverse effect discrimination, the employer has a duty to take reasonable steps to accommodate, short of undue hardship No record of undue hardship in this caseWhere such steps do not fully reach a desired end, the complainant must sacrifice either their religious principles or their employmentNo hierarchy of discrimination; identity categories are treated similarly Complainant must first establish prima facie discrimination; then onus shifts to employer to demonstrate reasonable steps to accommodateIf respondent says nothing, prima facie discrimination is enough to require a responseIf complainants do not reach the threshold of prima facie discrimination, there is no duty for the respondent to respond Moore v British Columbia (Education), 2012 SCCCourts below discussed “comparator group” analysis; do not focus on this analysis (human rights law does import a notion of comparison, but not formally in this way)Prima facie discrimination established using the following test (para 33):Claimant has a characteristic protected by ActThey experienced adverse impact with respect to a serviceProtected characteristic was a factor in the adverse impactOnce a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice within a set framework of exemptionsIf the conduct or practice cannot be justified, discrimination will be establishedPeel Law Association v Pieters, 2013 ONCAFactsCourthouse librarian requested two Black lawyers and 1 articling student to show ID to enter lawyer’s loungeLawyers filed human rights complaint on basis of lack of equal treatment for goods, services and facilities Appeal from decision of Divisional Court, which quashed decision of Ontario Human Rights TribunalTribunal found that there were sufficient facts to support a prima facie conclusion of discrimination and in the absence of a credible and rational reason to request their ID, there was some basis to infer that the act was motivated by their raceDivisional Court concluded there was not sufficient evidence to establish prima facie discriminationIssueDid the Divisional Court afford appropriate deference to the Tribunal?Did the Divisional Court err in concluding that the Tribunal reversed the burden of proof?DecisionAllows appeal, reinstates Tribunal’s decisionRationaleDraws prima facie discrimination test from Moore and Shaw:Characteristic protected from discrimination under CodeIndividual experienced adverse impact regarding the serviceProtected characteristic was a factor in the adverse impactDivisional Court’s use of test incorporated language of “causal nexus”, which was too strict an applicationNot necessarily to demonstrate that racial bias was a causal connection; just needed to be a factor Relatively little evidence is required; just need to prove that it is a factor on a balance of probabilities When the respondent’s answer to alleged discrimination relies on a statutory defence, the burden of proof shifts to the respondent; if the respondent’s answer leads further evidence to rebut an inference, only the evidentiary burden shifts Respondent can also call evidence to show that a prima facie case has not been established, or they take both approaches (evidentiary burden at prime facie stage, legal burden at justification stage) Divisional Court reversed full burden of proof, rather than just evidentiary burdenTribunals can exercise their discretion in how they structure their analytical approach to evidenceTribunal just needed to arrive within a “range of reasonable outcomes”; Divisional Court did not defer to their authority based on the reasonableness standard Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc, 2015 SCCFactsComplainant filed human rights complaint for alleged discrimination on the basis of race because his security clearance was rejected for pilot training; Bombardier rejected him for their Canadian program based on security clearanceTribunal ordered Bombardier to pay damages to complainant and stop applying U.S. security clearance measures to Canadian training programs; Court of Appeal set aside Tribunal’s decision IssueDoes the pilot training program’s decision violate s.10 of the Quebec Charter (individuals can be free from discrimination)?DecisionAppeal dismissedRationaleS.10 of the Charter uses the following test for prima facie discrimination (on balance of probabilities):A distinction, exclusion or preferenceBased on one of the enumerated groundsThat has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedomThe Charter provision is equivalent to the common law prima facie test; in other aspects of law prima facie doesn’t refer to a balance of probabilities but in this case it does Mr. Latif had to prove a connection between the U.S. authority’s decision and the discrimination; not enough evidence to demonstrate that their decision was racially motivatedIf there had been evidence that the decision was racially motivated, discrimination could have been established Discrimination cannot be presumed solely based on social context; a specific decision must be based on a prohibited ground (para 88) – otherwise this reverses the burden of proofThe prohibited ground need only to have contributed to or have a connection to the discrimination (“causal” elevates the test too significantly); complainant must prove these 3 elements on a balance of probabilitiesIn this case, Tribunal’s application of test lacked evidence; therefore, their conclusion was unreasonableAnalysisThis case was the SCC’s first opportunity to review alleged discrimination arising out of the action of a foreign authorityTeluscommunications Workers Union v Telus Communications Inc, 2014 ABCAFactsUnion appealed dismissal of a judicial review application of a labour arbitrator’s decision for a grievance of discrimination on the basis of mental disability (Arbitrator indicated that discrimination did not occur because Telus was unaware of the mental disability)Contradictory facts about whether employee raised diagnosis of Asperger’s with employer during probationary period; Union argued that Telus failed to accommodate employee’s disability (which affected his performance)Telus indicated that they had no options to accommodate him This case is based on Canadian Human Rights Act because he is a federal employee IssueIs knowledge part of the test for prima facie discrimination?DecisionAppeal dismissed RationaleAdverse effect discrimination does not require knowledge of an identity factor to constitute discrimination; shows the potential reach of human rights law and the potential consequences for employers Employer bears the onus of demonstrating accommodation to the point of undue hardship and must establish what a bona fide occupational requirement is Telus had a duty to accommodate the employee in some capacity based on the Meorin testStewart v Elk Valley Coal Corporation, 2017 SCC FactsEmployee used cocaine on days off from a safety-sensitive job at a coal mine and tested positive for drugs after being involved in an accident; was fired by employer No suggestion that he was impaired by cocaine at the time of the accident Company policy indicated that if they disclosed they had an addiction before a significant event, they would receive support, they would not receive discipline, etc. If they were found to have drugs in their system after a significant event, they could be terminated for breaching the policy Employee indicated that he thought he had an addiction; medical evidence later indicated that he was in denial about his addiction and this was a manifestation of the disease Tribunal held that employee was terminated for breaching drug use policy, not because of his addiction (no prima facie discrimination, and if there was discrimination was justified)He had the capacity to comply with the policy because he could choose where and when he used cocaine Court of Queen’s Bench and Court of Appeal upheld Tribunal’s decisionCourt of Appeal said no prima facie discrimination, even if there had been the policy was justified; dissenting judge said there is no prima facie discrimination and the policy was not justified At the 3rd stage of the analysis, the factor has to be a real part of the decision, not just in the backgroundIssueWhether the employee was terminated for violating the drug use policy or discriminated on the basis of his addictionDecisionAppeal dismissed RationaleMcLachlin CJ (majority):Tribunal decision attracts deference on fact-finding; just a matter of whether their decision is reasonableThis case is about settled law in a particular fact situation; reasonable for Tribunal to conclude that he was capable of complying with the policyAddiction is recognized in the law as a recognized disability; the nature of the disability does not matter Addiction falls along a spectrum; some people have the capacity to comply with workplace rules and other people do not Evidence supports the conclusion that the employee was terminated for breaching the policy, not because he had an active addictionDenial of his addiction was irrelevant in the circumstances; stereotypical or arbitrary decision-making is not sufficient to find for prima facie discrimination (not part of the legal test)Unnecessary to decide whether the employee was reasonably accommodated, because prima facie discrimination was not establishedProtected factor only has to be a factor, not a “significant” or “material” factor Moldaver and Wagner JJ (dissenting):Agree with Gascon on discrimination, but agree that the policy was justified Employee not required to show that their addiction was the only reason they were fired to establish prima facie discriminationEmployee only needs to show that there is a connection between his drug dependency and his loss of employment His ability to exercise some control over his drug use was not enough to militate against a finding of prima facie discriminationGascon J (dissenting):Stigma about addiction compromised the Tribunal’s ability to understand the discriminatory effect; emphasizes that intent is not required to establish prima facie discriminationCannot attribute fault to addiction issues; Stewart’s drug dependence was a factor in his drug use, and his drug use was a reason he was terminatedSafety-sensitive workplaces have to have safety policies, but those are not immune from human rights legislationThis should only be considered at justification stage Policies need to be based on bona fide occupational requirements that are justifiable Stewart’s drug use diminished his ability to make decisions and comply with the policyThis was one of the symptoms of his addiction; he could not recognize his lack of compliance with the policy Tribunal imposed artificially high test for prima facie discrimination (causation, proof that he was treated arbitrarily or stereotypically)Tribunal used proper test, but applied it incorrectly Reasonable alternatives requires an individualized assessment of the employee’s circumstances“Majoritarian blind spot” refers to stigma experienced by drug-dependent individuals (very marginalized disability) Duty to Accommodate & Statutory Defenses Statutory DefensesS.7(2) – age and marital status defence in employment contextS.7(3) – most utilized defence, BFOR in employment context S.11 – general defence; any contravention of Act shall be deemed not to have occurred if the contravention was reasonable and justified in the circumstancesDuty to AccommodateWhat are the elements of the duty to accommodate?Central Alberta Dairy Pool discusses key factors to consider: financial cost, disruption of collective agreements (which impose uniform contractual standards), impact on morale, interchangeability of the workforce (e.g. transferring employees), size of employer’s organization, safety (magnitude of safety risk and individuals who bear that risk)Bona Fide Pension PlansException in s.7 of AHRABritish Columbia (Public Service Employee Relations Commission) v. BCGSEU [Meiorin], 1999 SCC Facts Female firefighter challenged Government of BC’s aerobic standard for firefighters on the basis of gender (women having a lower aerobic capacity than men)Government claimed that this requirement reflected the safety issues as part of the occupationArbitrator found that there was prima facie adverse effect discrimination and the government had not discharged its burden to accommodate to the point of undue hardship; Court of Appeal allowed appeal of decisionIssueDid the government discharge their duty to accommodate?DecisionAllows appeal; restores arbitrator’s decisionRationaleDistinction between direct and adverse effect discrimination should be unified into one definition of discrimination; bifurcated approach has several difficulties:Draws a fairly artificial distinction (difficult to apply)Different remedies could apply to the different types of discrimination, which create different resultsLegitimizes systemic discrimination (standard itself was never subjected to scrutiny)Disjointed from purpose of human rights law3 step test required to establish that a prima facie discriminatory standard is an bona fide occupational requirement (on a balance of probabilities):Standard adopted for a purpose rationally connected to the job (focuses on validity of purpose and its rational connection to the performance of the job, not standard itself)Examples – safety, efficiencyStandard adopted in an honest and good faith belief that it was necessary to fulfill the work-related purpose (subjective)Standard is reasonably necessary to the accomplishment of the work-related purpose (must be impossible to accommodate individual employees with that characteristic without imposing undue hardship on the employer)Most challenging element, very fact-based inquirySimilar to minimal impairment analysis in s.1Some hardship is acceptable; standard is undue hardship This is where the duty to accommodate assessment occurs Employers have to provide evidence justifying purpose; cannot just bring anecdotal evidenceSome guiding questions:Did employer consider other options?Are there alternative means of accommodating the employee?In this case, first two requirements of test were met; government rationale not met at third stage due to gaps in evidence (flaws in research methodology)Could not establish that aerobic standard was required to perform job safely Cannot just present evidence that hardship would occurNo reason to interfere with arbitrator’s holding that the evidence fell short of establishing that there is a safety risk if the aerobic standard is not metGovernment did not met test for bona fide occupational requirement described above AnalysisFirst case to move away from O’Malley decision (bifurcated approach)British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human?Rights) [Grismer], 1999 SCCFactsClaimant suffered a condition that eliminated most of the peripheral vision in his left eye; B.C. Superintendent of Motor Vehicles cancelled his driver’s licenseClaimant repeatedly asked to be reconsidered and passed numerous driving exams (demonstrated an ability to compensate for his lack of peripheral vision)Claimant filed a human rights complaint on basis of disability; B.C. Council of Human Rights found that there was prima facie direct discriminationBCSC refused Superintendent’s application for judicial review; BCCA set aside this decisionIssueIs the driving exam restriction valid under the Meiorin framework?DecisionAppeal allowedRationaleSuperintendent’s requirement of a minimum standard of vision was not reasonably necessary to accomplish purpose (failing third step of Meiorin test)Superintendent would need to show that any individual with this condition could meet the requirement of highway safety, or the ability to test these individuals would be impossible short of undue hardship (e.g. extreme cost implications)In this case, Superintendent could not show that everyone with this condition would be unable to be a reasonably safe driver Individuals with this condition could be accommodated in other jurisdictionsIndividuals with hearing problems were entitled to an individualized assessment Individuals with this condition were held to a higher standard than other individuals who had vision challengesDiscrimination in this case was not the refusal to issue a license; it was the refusal to give the claimant a chance to prove through individual assessment that he could be licensed without jeopardizing road safety (this case merely establishes that he had the right to be assessed)Superintendent erred by applying an absolute approach, rather than a reasonable approach based on evidenceStandards must be as inclusive as possible; there is more than one way to provide accommodationSafety and efficiency are legitimate goals, but the means by a service provider attempts to achieve that purpose must be scrutinizedCentral Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 SCCFactsComplainant filed human rights complaint against employer on basis of religion for preventing him from observing Easter Monday; employer refused complainant’s request because there are particularly onerous work requirements on MondaysComplainant was informed that if he did not show up for work he would be terminated IssueCould the employer’s Monday work requirement be upheld as a bona fide occupational requirement?Did the employer reasonably accommodate the complainant’s religious beliefs?DecisionAppeal allowedRationaleWhere a rule has an adverse discriminatory effect, the employer should uphold the rule in its general application and the consideration is whether the employer could have accommodated the employee who was adversely affected without hardship Undue hardship can include financial burdens, employee morale, disruption of a collective agreement, interchangeability of work forceOverturned Bhinder’s holding that the only way to justify a direct discriminatory rule is a statutory equivalent of the bond fide occupational requirement In this case, onus was on employer to demonstrate efforts to accommodate employee up until degree of undue hardship No reason to believe that employee’s one absence on a Monday would disrupt plant operations or compromise the work activities overallCentral Okanagan School District No. 23 v.?Renaud, 1992 SCC Facts Appellant was a Seventh Day Adventist who worked as a school custodian; one of his shifts required him to work on a Friday evening, which affected his ability to observe the SabbathOnly practical accommodation (Sunday – Thursday work schedule) would require an amendment to the collective agreement and union consent Union did not consent and threatened to launch a policy grievance; school board eventually terminated employee when he failed to attend Friday evening shift Appellant filed complaint against school board and union arguing that he was subject to adverse effect discrimination, union was perpetuating this discrimination and neither party discharged their duty to accommodateIssueIs an employee relieved of their duty to accommodate if the accommodation would require an amendment to the collective agreement?Did the union breach their duty to accommodate?Decision Appeal allowedRationaleEmployer must take reasonable measures short of undue hardship; more than a mere negligible effort is required Private arrangements must be subjected to human rights legislationIn a case of direct discrimination not justified under the Act, the provision is invalid because it discriminates in both purpose and effect; in adverse effect discrimination, the provision is upheld in its general application and the complainant is accommodated A collective agreement may affect the degree of hardship if it is a substantial departure from the normal operations of its conditions; however, defending a threatened grievance did not constitute undue hardship that justified the refusal to accommodate the appellantConsiderations that reflect employee morale should be applied with cautionUnion’s duty to accommodate arises only when its involvement is required to make the accommodation possible and no other reasonable alternative resolution of the matter can be foundHowever, it also arises if the collective agreement contains a discriminatory standard and the union are part of developing that standard However, in this case the union had a shared duty of accommodation and could be held jointly liable with the employerThe search for accommodation is a multi-party inquiry; employer, union and employee have to work together to find a reasonable accommodationComplainant’s conduct is always a relevant consideration in assessing whether the duty to accommodate has been fulfilledComplainant has an obligation to accept a reasonable accommodation; they are not entitled to perfect accommodation and they cannot dictate what the accommodation should be ABCA case (Suncor) - Test is not subjective; employer is not entitled to accept employee’s subjective assessment of their capabilities Union had an original duty to accommodate in this case, and complainant exhausted all of their options to seek reasonable accommodationHydro-Quebec v.?Syndicat?des employees de techniques?professionnelles?et de bureau?d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC Facts Complainant was an employee of Hydro-Quebec, missed 960 days of work between 1994-2001 due to various health issues; complainant was dismissed from employment after not going to work from February – July Complainant’s doctor and psychiatrist recommended she go on leave from workComplainant filed grievance, which was dismissed by arbitrator on the basis that she had previously demonstrated she was not able to be a reliable employee Superior Court dismissed application for judicial review, Court of Appeal sent this decision aside on the basis that the employer failed to establish that they exhausted all options to accommodate the employeeIssueWhat is the correct test for undue hardship in the context of non-culpable absenteeism?DecisionAppeal allowed; affirms Superior Court’s judgment to dismiss application for judicial review of arbitration awardRationaleCourt of Appeal erred in applying test for undue hardship; should have evaluated whether there was “total unfitness for work in the foreseeable future” – the employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship in the foreseeable future Does not need to be impossible to accommodate the employee; must be less than impossibilityEmployer does not need to change working conditions in a fundamental way Duty to accommodate should be assessed globally to account for employee’s entire absence; does not need to be assessed at the time of the decision to dismiss the complainantIn this case, employer adjusted her working conditions to accommodate her limitations; arbitrator found that employer had acted appropriately with patience and tolerance for the complainant’s ongoing situation In a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship Bona Fide Insurance & Pension PlansNew Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC Facts Employee alleged age discrimination after being asked to retire at the age of 65 as per a mandatory retirement policy contained in employer’s pension planNew Brunswick Human Rights Code notes that the age discrimination provisions are not applicable to a bona fide pension planCourt of Queen’s Bench set aside Tribunal’s decision; Court of Appeal dismissed employee’s appealIssueWhat is the appropriate test to determine if a pension plan is bona fide?DecisionAppeal dismissedRationaleMeiorin test for bona fide occupational requirement does not apply to bona fide pension plansIntention of Legislature is that they don’t have to defend Meiorin type policies in the context of bona fide pension plansBona fide pension plans are legitimate plans adopted in good faith and not for the purpose of defeating protected rightsCannot be a colourable attempt to defeat human rights legislation (low threshold)Existence of plan is what is scrutinized, not the content of the plan itself Nature of this provision was meant to ensure legitimacy of pension plans Rein v. Alberta (Human Rights Commission), 2016 ABQB Facts Rein filed a human rights complaint on the basis of age because she lost her group health benefits and life insurance plan coverage from her employer upon turning age 65 Director of Human Rights Commission dismissed her complaint; Rein filed for judicial review of the Commission’s dismissal Rein argued that the Commissioner failed to provide evidence for how they came to the conclusion that her pension plan was bona fide and therefore exempt from the age discrimination provisionIssueDid the Chief Commissioner of the Human Rights Commission act appropriately in their gatekeeping role in this circumstance?DecisionApplication dismissed; Director’s decision dismissing the complaint was reasonableRationaleEmphasizes need for a deferential approach of how Commission interpreted home statute and the provision has clear legislative intentCommissioner’s decision falls within range of possible, acceptable outcomes in interpreting the “bona fide” definition from Potash to also apply to employee benefit plansIt was entirely reasonable in law for the Commissioner to apply the bona fides test from Potash to the current caseCommissioner had collective agreements and plan information available to make their decision; reasonable to conclude that the decision made on this evidence was appropriateRace, Colour, Ancestry & Place of OriginCharacteristics of race appear in colour, ancestry and place of origin (all protected grounds)Association of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQBFactsAppeal by Association against AHRT decision, which found that APEGA discriminated against Mr. Mihaly on the grounds of place of origin by failing to recognize the equivalence of his education from Czechslovakia and denying his registration Mr. Mihaly was awarded $10,000 in general damages because APEGA’s assessment criteria was improperly individualized, but declined to award him lost wagesMr. Mihaly cross-appealed for the Tribunal’s refusal to award him damages for loss of incomeAPEGA required Mr. Mihaly to write 3 additional confirmatory exams and take a course or pass an equivalent course in engineering economicsMr. Mihaly refused to write the confirmatory exams and failed the other examsAHRT concluded that APEGA’s requirements were not “for the purpose of correcting a perceived academic deficiency”IssueWas the AHRT’s decision reasonable?DecisionTribunal decision reversed, cross-appeal is dismissed because it depends on a finding that prima facie discrimination has not been justified RationaleAppellant had not established a breach of the rules of procedural fairnessPlace of education is inextricably linked to place of origin; Mr. Mihaly had no way of avoiding the adverse impact of writing the confirmatory examsPlace of education is a close enough proxy for place of origin – discrimination is not limited to a very strict reading of those grounds Prima facie discrimination is specific to the confirmatory exams; no adverse treatment from the other exams that other Alberta engineers are required to write The Tribunal’s assessment that prima facie discrimination had occurred was reasonable, but their conclusion that APEGA failed to justify their requirement was unreasonable (they clearly met the onus of the reasonable and justifiable defense in exercising their discretion to impose the confirmatory exam)Meorin – requirement to demonstrate entry-level competence is reasonably necessary for safe practice as a professional engineer, so the discrimination was justified AnalysisSignificant win for regulators – they do not have to change their requirements in a significant way provided that they are not based on discriminatory assumptions Place of origin can be used as a proxy for other characteristics, as long as there is a significant connection Bobb v Alberta (Human Rights and Citizenship Commission), 2004 ABQBFactsMr. Bobb was a person of colour who worked as a corrections officer; he filed a human rights complaint against the Edmonton Remand Centre for discriminating against him on the basis of raceMr. Bobb claimed that the work environment created a pattern of discrimination that exposed him to adverse working conditions Mr. Bobb and 4 other corrections officers signed a letter of complaint alleging that a large group of officers had threatened one officer in relations to allegations of sexual harassmentAfter the letter, Mr. Bobb was labelled a “rat” and harassed and intimidated at workMr. Bobb had several performance issues documented at work and went on numerous stress leavesMr. Bobb learned from an inmate that one of his colleagues described him using a racial slurThe Human Rights Panel dismissed the complaint; Mr. Bobb appealed decision on the basis that the Panel applied a higher standard of proof than was required IssueDid Mr. Bobb experience discrimination on the basis of race? Did the employer allow this discrimination to persist over time?DecisionHigher standard of proof was inappropriate, but Panel was appropriate in conclusion that was reachedRationalePanel applied a “preponderance of probability” standard rather than “balance of probability” standard – placing higher onus on person alleging discrimination to protect integrity of institution is not appropriateOne racial slur isn’t enough to amount to harassment under the Act The higher standard is wrong and contrary to the objectives of human rights legislation; only appropriate to apply a higher standard in very limited circumstances (e.g. sexual assault allegation, where additional charges could be triggered)However, the Panel’s findings of fact as to the lack of existence of discrimination is accuratePara 76 – mere allegations that conduct is racially motivated cannot be substituted for proof of facts where there is a reasonable alternate theory (in this case, he had exercised some poor judgment in the workplace) Management’s response to alleged racial slur shows an intolerance for discrimination, rather than acquiescencePardo v School District 43, 2003 BCHRTFactsMs. Pardo is a Filipina custodian who alleged discrimination on the basis of race because of comments made to her by a co-worker (“I hate Filipinos”)There was lots of evidence that the two parties had a difficult working relationship IssueCould a single comment constitute discrimination? DecisionComplaint dismissed RationaleThe following factors are relevant in deciding whether a single comment constitutes discrimination:Egregiousness of commentNature of relationship between involved parties Context in which the complaint was madeWhether an apology was offeredWhether or not the recipient of the comment was from a historically disadvantaged group (vulnerability)Mohamud v Canada Dewatering (2006) Ltd, 2005 AHRC FactsMr. Mohamud alleges several incidents that occurred in his workplace that were discriminatory on the basis of race and made two complaints to the HRC Mr. Mohamud also alleges that his employer retaliated when he brought the first complaint of discriminationMr. Mohamud was part of a safety-related incident, in which a generator ran out of fuel because he had not filled it up sufficiently; this prompted his employer to consider terminationMr. Mohamud filed a human rights complaint internally and his employer completed the investigation without consulting him; he was then asked to sign a performance plan He was later terminated after numerous absences and performance issues at work IssueWas Mr. Mohamud discriminated against on the basis of race? Did his employer retaliate after he filed the first human rights complaint?DecisionPrima facie discrimination occurred, but no basis to establish retaliation RationaleThis was a prima facie case of discrimination because the discrimination was based on a protected ground and Mr. Mohamud experienced an adverse impact (numerous comments/gestures created a poisonous work environment)However, credibility of supervisor witness does not indicate that the suggestion that Mr. Mohamud would not be promoted because of his race is not consistent with the other evidence about his behaviour Awards $7,500 to injury to Mr. Mohamud’s dignity for the first complaint being established in part Mr. Mohamud’s termination was for cause and cannot be established as a form of retaliation for his complaint; his employment status was already vulnerable The initiation of a human rights complaint does not impede an employer from taking reasonable or necessary non-discriminatory action to manage the workplace On a balance of probabilities, Mr. Mohamud’s human rights complaint was not a factor in his terminationAnalysisEmployers need to take these comments seriously, even if they were described as a joke Shows the difficulty of distinguishing between race-based discrimination and performance management Navigating Human Rights ComplaintsCommission model – “sufficiency of evidence” test (Cooper) – if insufficient, they make a striking or summary judgment application Currently in Alberta, human rights complaints often take longer than a traditional civil litigation process Length of process can impact the amount of money the employer might owe in back pay if discrimination is found Commission’s Bylaws also indicate the components that need to be in a complaint1) Complaint similar to a statement of claim2) Response similar to a statement of defenceopportunity to gather as much evidence as possible because of the length of the timelines detailed responses can curtail the extent of the investigation period 3) Conciliation early stage mediation process that is voluntary (18-24 months for a conciliator to be appointed to file), conducted by a Commission employee in practice, it is usually conducted by shuttle mediation (talking to parties separately), can be effective often complainants come with unrealistic expectations about outcomes; conciliator can help manage expectations to make settlement more likely 45-50% of files resolve at conciliation; if it fails the investigation queue is a 3-4 year wait4) Investigation if conciliation is not successful, an investigation process starts (e.g. summary process, traditional process with witness interviewing, investigator recommendation to Director of Commission)Director typically agrees with investigator’s recommendation, but they may not 5) Director’s Referral 4 categories to bypass conciliation and investigation for a s 22 decision:High public interest Credibility issue (e.g. harassment complaint – investigators are not making decisions about whose evidence is accepted or not)Circumstances of the party (e.g. party with a terminal illness or a circumstance that militates in favour of commencing the process earlier)If no further investigation is needed 6) Section 22 DecisionTypically takes 12-24 months for DR decision Only Director has statutory authority to make decision; an investigation report is not a section 22 decision Director will either dismiss it (if it is without merit) or conclude there is a reasonable basis to proceed (but before it goes to the Tribunal, the parties have the opportunity to engage in settlement discussions with the Commission’s legal counsel)If the complainant refuses the discontinuance offer, the Director can assess that the offer is reasonable and terminate the rest of the process (pending a s.26 appeal)A section 22 discontinuance offer is not the time to be “cheap” on the settlement front; the Director is assessing the settlement offer based on what is fair and reasonable in how the Tribunal would proceedWhen the file is referred to the Tribunal, the opportunity to avail themselves of a discontinuance offer is over 7) Section 26 Appeals Additional material can be put forward by the partiesIf the Commissioner 8) TDRThis is a referral to a hearing; human rights version of JDR Run by one of the human rights adjudicatorsDirector’s role depended on the tribunal member who was selected to adjudicate the disputeReaches resolution at over 70% of cases 9) Hearing If TDR is unsuccessful, proceeding moves on to hearing Less formal than a courtroom proceeding, not bound by rules of evidence in the same wayStill bound by procedural fairness Just one tribunal member is assigned to oversee the proceeding as the adjudicator Pre-hearing conference call to discuss exchange of documents, etcPre-hearing briefs required with evidence, case law and submissions (this is backwards, because the evidence hasn’t yet been led Adjudicator has 4 months to release a decision, but that timeline can be extended 10) Section 37 Appeal Goes to QB – a statutory appeal, not a judicial review Uncertainty about standard of review for human rights tribunals Discrimination Issues in Multiple FormsFigliola – WCB issue dealt with human rights issues; generally there is concurrent jurisdiction, but when the issues have been dealt with already by the other forum the principles of finality and integrity of administrative processes prevail (found that WCB ruling prevailed and HRT matter was stood down) Labour arbitrators have the ability to award similar remedies through concurrent jurisdiction because human rights provisions are read into collective agreements Family/Marital StatusOne of the most unsettled areas of human rights law Traditional definition based on familial relationships; modern definition incorporates obligations that are included in familial relationships (primarily childcare obligations, can include eldercare)Various articulations of family status test; challenging for employers because there is potential to “open the floodgates” on these issues Campbell River – BCCA case with a very strict/hard-to-met test for individuals seeking to have family status accommodations (“serious interference” with a “substantial parental or other family duty”), this has been affirmed in subsequent cases Employer implemented a shift change that employee could not meet because of her childcare obligations (child with a severe disability)Court found that family status discrimination could be established under this strict test Employer had to be implementing change that created the conflict; other perspectives indicate that it shouldn’t be the employer implementing the changeParent had to be able to reasonably and practically fulfill the obligation rather than other sources (e.g. external childcare)Moore test has not been applied explicitly to family status by SCCJohnstone – test is much more flexible than the Campbell River test; this test has been applied by the majority of other jurisdictionsSuen – employer wanted to move father to an out-of-province assignment and he refused due to his childcare obligations, he was terminated as a result B. v. Ontario (Human Rights Commission), 2002 SCC 66Respondent was dismissed because of the identity of his wife/daughter, he argued that the discrimination that occurred was on the basis of marital and family statusIssue was whether identity of spouse/family member aligned under definition of “family status” or “marital status” SCC affirmed broad interpretation of marital and family status based on statute, principles of interpretation and discrimination jurisprudence Board concluded that “relative” rather than “absolute” family status still fell within definition (“civil status”), Divisional Court concluded that Board had erred by broadening definition of a ground of discrimination to an issue that was beyond “group membership” (relied on section 15 jurisprudence)Court of Appeal reversed Divisional Court by concluding that identity of a marital partner or family member fell within the scope of the ground of discrimination (because otherwise they would be deprived of remedies)The word “status” does not exclude discrimination claims based on a particular identity; family and marital status are relative concepts Attorney General of Canada v. Johnstone, 2014 FCA 110Johnstone filed a human rights complaint on the basis of family status for her employer refusing to accommodate her childcare needs through work scheduling arrangementsCBSA required employees with alternate scheduling arrangements to be assigned part-time status (unwritten policy); CBSA claimed they had no legal duty to accommodate her childcare responsibilities Human Rights Commission dismissed complaint; Federal Court allowed judicial review application and remitted it back to Commission for new determinationAppeal was dismissed by FCA, Commission referred complaint back to Tribunal, which ordered CBSA to stop discriminatory practices and compensate Johnstone for her lots wages and benefits Attorney General sought judicial review of Tribunal’s decision, which was dismissed except for some remedial considerationsMany decisions established that family status includes parental obligations, including childcare obligationsChildcare needs under family status must have an immutable or constructively immutable characteristic (e.g. dance classes or sports events would not fall under family status)Childcare obligations must reflect legal relationship between parent and child and prevention of neglect; voluntary family activities do not have this immutable characteristicFamily status in Canadian Human Rights Act includes parental obligations which engage the parent’s legal responsibility for the child (para 74)Test for workplace discrimination on basis of family status due to childcare obligations requires following:Child is under individual’s care and supervision Childcare obligation engages individual’s legal responsibility for child (as opposed to personal choice) Individual made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessibleThe impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of that childcare obligationSMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162Applicant (SMS Equipment) filed for judicial review on basis of arbitration award, which found that employer is obliged to accommodate employee’s childcare difficulties when scheduling her shifts SMS Equipment supplies equipment to the construction, mining and petrochemical industries on a “24 hour a day, 7 days a week” basis; refused to allow grievor to work exclusively day shifts Arbitrator concluded that family status under Alberta Human Rights Act included childcare responsibilities; employer could not demonstrate that working rotating night and day shifts was a bona fide occupational requirement Standard of review of reasonableness applies to all aspects of arbitrator’s decision based on Dunsmuir frameworkArbitrator’s interpretation of family status was reasonable due to an absence of clearly contradictory legislative language or jurisprudence Arbitrator’s decision that union had established prima facie case of discrimination was reasonable Even if standard of correctness was to be applied, the arbitrator’s decision could still be found to be correctQuestioned “self accommodation” aspect of Johnstone test ABQB dismissed application for judicial review Devaney v. ZRV Holdings Limited, 2012 HRTO 1590Applicant worked as an architect; his employment was terminated after he was not allowed to maintain a flexible work schedule to care for his ailing mother Applicant filed a human rights complaint on the basis of family status After applicant was terminated, employer offered him a position on a contract basis in which he would be compensated for the days he attended the office SCC has held that “family status” in broad enough to include circumstances where discrimination results from the particular identity of the spouse or family memberApplicant indicated that caring for her was a choice and that they did not have the resources to hire external support, but they could have obtained assistance using other meansApplicant did not clearly explain in his evidence why he was personally required to take his mother to her medical appointments or care for herApplicant established a prima facie case of discrimination on the basis of family status; respondents failed with respect to procedural and substantive dimensions of the duty to accommodate (they had a duty to inquire and explore possibilities to accommodate his needs)Misetich v. Value Village Stores Inc., 2016 HRTO 1229Applicant worked part-time at Value Village and filed a human rights complaint on the basis of family status for discrimination on the basis of her eldercare responsibilities (physical demands would impact her ability to prepare meals for her mother)Applicant was terminated for job abandonment, employer continued to reject doctor’s letters about her eldercare responsibilities and physical requirements HRTO decision argued that tests for family status discrimination in jurisprudence inadvertently could create a higher threshold for discrimination; notes that there may be many obligations that caregivers have that may not emanate from their legal responsibilitiesFamily status discrimination requires more than a “negative impact on a family need” – must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship Applicant failed to establish that discrimination occurred because her ability to provide evening meals was not adversely affected by her workday requirements Applicant’s family status was not a factor in her termination; applicant’s employment was terminated because she failed to comply with respondent’s directives and refused to work certain shifts (appears that she abandoned her position)Clark v. Bow Valley College, 2014 AHRC 4Employee was a nursing instructor who requested maternity leave; she delivered her baby early and there was poor communication between her and her employer about how that would affect our return date Employee found out inadvertently that the employee expected her to return to work on January 1, but she had childcare arranged for February 1 and was unsuccessful in finding earlier childcare Indicated that all 4 Johnstone factors can fit within first step of Moore test Age Age is defined as age 18 or older; some jurisdictions define it as 18-65 but that is not the approach Alberta has taken in their HR legislationMcKinney – constitutional challenge to Ontario Human Rights Code, SCC concluded age provision was discriminatory under the Charter but saved under s.1 (legislative compromise to agreeing when people will be leaving the workforce, promotes objectives like replenishing workforce)This was all obiter; key proposition of case was that Charter can apply to universitiesOne of the most recent changes to the Alberta Human Rights Act resulted from a Charter challenge (section 15) on the basis of age discrimination for tenancy; Government of Alberta added age to that provision Issues included how amendments would impact adult-only condominiums Amendment was a compromise – didn’t change definition of age, but makes some exceptions in the condo/tenancy context (still possible for bars to exclude minors)Introduced age discrimination as a protected ground for goods, services and facilities, with exceptions for age restrictions in some areas (benefits for seniors/minors (e.g. discounted bus fares, movie tickets), seniors-only housing at 55+, existing age-restricted condos/co-operatives that receive a 15 year grace period)Tenancy is different from condos and is subject to the same rules (no age restrictions for rental buildings)Dickason v. University of Alberta, [1992] 2 SCR 1103Appellant was a tenured full professor at the University of Alberta forced to retire at the age of 65 due to a mandatory retirement clause; her competence was not at issue AHRC decided in her favour and ABQB upheld that decision, but it was overturned by the ABCALa Forest, Gonthier, Cory and Iacobucci JJ:SCC held that appeal should be dismissed because the university could demonstrate that the mandatory retirement practice was reasonable and justifiableRationale for s 1 of the Charter can be applied to human rights legislation; courts overall all very hesitant to interfere in the affairs of universities Mandatory retirement has clear policy objectives (preservation of tenure, promotion of academic renewal, facilitating planning/resource management, retirement with dignity), this is rationally connected to these objectivesEffects of prima facie discrimination are proportional to the legitimate objectives servedL’Heureux-Dube and McLachlin JJ (dissenting):Human rights legislation should be read broadly and purposivelyEmployer must prove absence of a practical alternative to the discriminatory rule, satisfying a civil burden of proofUniversity’s objectives are pressing and substantial, but peer evaluation is a more fair and equitable way of assessing professorsUniversity failed to prove a rational link between faculty renewal and mandatory retirementAge should not be stereotyped as being infirm, senile; not necessarily correlated with decline in performanceDevastating effects that forced retirement can have on an employee’s finances, health and self-esteem are grossly disproportionate to advantages gained by universitySopinka J (dissenting):Agrees mostly with L’Heureux-Dube’s dissent; appeal should be allowed because evidence on connection between university’s objective and mandatory retirement policy was weakBoard found that there were other more reasonable means for university to achieve its objectives; no valid reason to disturb these findingsNotes: This case is pre-Meorin; not a constitutional challenge (just a human rights claim)Crucial difference between human rights legislation and constitutional rights is that human rights are aimed at regulating the activities of private individuals; Charter is aimed at regulation of the state (more of a notion of deference to the legislature)Mortland & VanRootselaar v. Peace Wapiti School Division No. 76, 2015 AHRC 9Complainants were school bus drivers employed by school division that were subject to mandatory retirement; each complainant filed a separate AHRC complaintSchool division asserted that “age 65 or less” is a bona fide occupational requirementTribunal finds that prima facie discrimination is established, and bona fide occupational requirement is not establishedExpert evidence did not indicate that age restrictions were required to ensure safe transportation of students; more frequent medical testing would provide better informationSafety risks don’t begin at age 65; healthy aging drivers were unlikely to lead to unsafe driving except in the case of extreme old age Experts failed to show that there was something beyond the licensing system that was required to ensure that older drivers were safe drivers Orders school division to cease mandatory retirement policy and reinstate complainants without a loss of seniority Note: This case is post-Meorin; demonstrates tension between dueling experts that can occur in Meorin framework when making the connection between the policy and the necessity Shows that Meorin framework shifts emphasis more towards evidence/science Cowling v Her Majesty the Queen in Right of Alberta as represented by Alberta Employment and Immigration, 2012 AHRC 12Ms. Cowling alleged she was denied continuing employment because of her age when her contract was terminated and her employer stated that he wanted to turn her job into a permanent “developmental” jobMs. Cowling applied for the new position and was unsuccessful in her applicationMs. Cowling’s contract negotiation occurred shortly after her supervisor expressed that he was quite angry with her for speaking directly with HR about a change in her husband’s medical status (cancer spreading to his brain); Ms. Cowling was seeking compassionate leave while renegotiating her contractWhen Ms. Cowling accepted a new contract, she lost of her unused sick time over 4 years of employmentThe new job that was posted was below Ms. Cowling’s rank, but would provide permanent benefits (e.g. pension benefits)After Ms. Cowling left, her supervisors re-defined the position again into a management positionMr. Kennedy denied that age was a consideration when he described the new position as “developmental”First two stages of prima facie discrimination test were met; reasonable to infer that age was a factor in the denial of her continued employment Supervisors did not provide a fair assessment of Ms. Cowling’s mediation skills and she was actively held back from increasing her practical experience and knowledge in mediationSuccession planning does not provide a credible explanation for denying Ms. Cowling continuing employmentMs. Cowling attempted to appropriately mitigate her losses by seeking employmentTribunal ordered reinstatement, 5 years lost wages (discounted 30%) and general damages ($15,000)Note: This case serves as a lesson for employers to be very cautious about how they manage their aging workforce New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45Employee filed complaint with NB HRC due to mandatory retirement policy in employer’s pension plan; statute indicated that age discrimination provisions did not apply to bona fide pension plansBona fide occupational requirements do not apply to assessment of a bona fide pension planTo be a bona fide pension plan, it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rightsReligionReligious obligations that require non-traditional days off will be accommodated, and employers are obligated to try to accommodate those obligationsCentral Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 SCR 489Complainant indicated that respondent refused to employ him because of his religion, which required him to not work on Sabbath and holy daysRespondent refused complainant’s request for leave without pay for Easter Monday because of onerous operational requirementsDefence of accommodation must be rationally connected to performance of the job up to the point of undue hardshipComplainant established prima facie discrimination and respondent failed to discharge burden of proving that it accommodated complainant up until undue hardship Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970Appellant was a Seventh Day Adventist who worked as a school custodian; one of his shifts required him to work on a Friday evening, which affected his ability to observe the SabbathOnly practical accommodation (Sunday – Thursday work schedule) would require an amendment to the collective agreement and union consent Union did not consent and threatened to launch a policy grievance; school board eventually terminated employee when he failed to attend Friday evening shift Appellant filed complaint against school board and union arguing that he was subject to adverse effect discrimination, union was perpetuating this discrimination and neither party discharged their duty to accommodateThe search for accommodation is a multi-party inquiry; employer, union and employee have to work together to find a reasonable accommodationComplainant’s conduct is always a relevant consideration in assessing whether the duty to accommodate has been fulfilledComplainant has an obligation to accept a reasonable accommodation; they are not entitled to perfect accommodation and they cannot dictate what the accommodation should be ABCA case (Suncor) - Test is not subjective; employer is not entitled to accept employee’s subjective assessment of their capabilities Union had an original duty to accommodate in this case, and complainant exhausted all of their options to seek reasonable accommodationAmselem v Syndicat NorthcrestAppellants set up succahs on their balconies to fulfill their religious obligation as part of Jewish religious festival, SuccotRespondent requested their removal, noting that the succahs violated the condo bylaw; proposed that they set up a communal succah in the gardens insteadAppellants claimed that they were required to set up their own succahs Freedom of religion characterized by (1) freedom to undertake practices and harbor beliefs that have a nexus with religion (2) in which the individual sincerely believes that the practice is necessary for their beliefs; if that belief is established a court must ascertain whether there has been a non-trivial or non-insubstantial interference with the exercise of that right (very personal, subjective concept)Courts can inquire into the sincerity of belief (honesty of belief); just requires that claimants are not disingenuous Claimants do not need to demonstrate objective religious obligations or requirements to invoke freedom of religionAssessment of sincerity is a question of fact that can be based on criteria (e.g. claimant’s testimony)In this case, sincerity of belief could be established, and the prohibition on building individual succahs constitutes a non-trivial interferenceMouvement laique Québécois v. Saguenay (City), 2015 SCC 16Member of the public regularly attended Council meetings where the Mayor would recite a prayer and make the sign of the cross; there were also various religious symbols (crucifix, Sacred Heart statue)The individual asked the Mayor to stop the practice, and when he refused he filed a human rights complaint on the basis that his freedom of religion rights were being infringedTribunal focused only on whether prayer was discriminatory and found that the City was breaching its duty of neutrality by showing a preference for one religion over others; concluded that displaying religious symbols was more than a trivial or insubstantial affront to the individual’s freedom of conscience and religion Court of Appeal allowed appeal, holding that prayer expressed universal values and the religious symbols were works of artSCC allowed appeal because Court of Appeal erred in applying the standard of correctness; however, the Court of Appeal was right to find that the Tribunal could not consider the issue of religious symbols because they did not conduct an investigation on the matter“A neutral public space free from coercion, pressure and judgment on the part of public authorities in matters of spirituality is intended to protect everyone’s freedom and dignity and helps to preserve and promote the multicultural nature of Canadian society”Exclusion and stigmatization resulted for non-believers Tribunal’s finding that there was discriminatory interference was reasonableLoyola High School v Attorney General of Quebec, 2015 SCC 12Minister can grant exemptions for ERC program if alternative program is deemed “equivalent”Loyola’s request for an exemption was rejected because they planned to teach their alternative program solely from a Catholic perspective (and was therefore not equivalent)On judicial review, the Superior Court found that the Minister’s refusal of an exemption infringed on Loyola’s right to religious freedom; QCCA concluded that Minister’s decision was reasonable and did not breach religious freedomSCC concluded that the Minister’s decision requiring all aspects of Loyola’s program to be taught from a neutral perspective limited freedom of religion more than was necessary given the statutory objectives (did not reflect proportionate balancing)Requirement to teach about Catholic faith from a neutral perspective is a violation of freedom of religion for a Catholic school; but Loyola’s alternative program wanted to teach other faiths from a Catholic perspective, and that would be unreasonable Freedom of religion means no one can be forced to adhere to or refrain from a particular set of religious beliefs (both individual and collective)See minority decision to compare to Webber Academy:As a religious organization, they had a right to freedom of religion in the CharterFreedom of religion has a communal character Webber Academy Foundation v. Alberta (Human Rights Commission) – 2018 ABCAWebber Academy appealed judgment upholding decision of AHRT that they unlawfully discriminated against 2 high school students by prohibiting them from performing prescribed forms of prayer on campusSchool characterized service as “prayer space” (not customarily available to public, especially because they are a non-denominational school); ABQB found this to be contrary to what Moore definition of service actually is (education) and prayer space is a necessary adjunct to that service Parents raised students’ need to pray prior to enrollment and Webber responded positivelyLater, the President of the Academy indicated that prayer was not permitted because it was a non-denominational school; they later agreed that they could pray without saying the prayers out loud, bowing or kneelingTribunal concluded that the Academy did not have unfettered discretion to refuse a student’s request to perform a religious obligation ABQB dismissed appeal, noting that legal tests were correctly applied (Amselem – evidence of their sincerity of belief)SCC denied leave to appealABCA concluded that ABQB made some errors in their analysis and the matter should be directed back to the Tribunal for a new hearing; noted that parties should raise Charter issues at Tribunal rather than later in appeal processDisabilityDisability is the most frequently accessed ground of discrimination; disability is unique because more “effort” is required to prove that the ground existsAHRA protects individuals with the condition or if others perceive them to have the conditionAHRA – mental disability is defined as “any mental disorder, developmental disorder or learning disorder, regardless of cause or duration”Do you need a confirmed diagnosis for mental disability?Very difficult in situations of stress leave (Crowley) – needs to be a diagnosis of some recognized mental disability or a working diagnosis of clinically significant symptoms by a professional with specificity and substance (doesn’t need to go as far as clinical diagnosis)Level of specificity needs to be beyond a note on a prescription pad (“needs to be away from work for X weeks”)Does not need to be a formal medical report, can be a doctor’s description of symptomsNova Scotia Liquor Corporation affirmed this analysis; most commonly the evidence should come from a doctor or medical professionalAHRA – physical disability is defined as “any degree of physical disability, infirmity, malformation or disfigurement …”Ouimette – demonstrates challenge of striking a balance between purposive interpretation and “doing violence” to statutory language and purpose of human rights law; must be an “ongoing and material” illness rather than a transitory illnessCan be a physical ailment, disease, social construct, perceived disability – courts have to consider whether that condition caused the individual to experience adverse treatment Emphasis on effects of distinction, not on the actual nature of the disability or medical concernDoes not apply to “normal” or “common” ailments (negative sterotyping or bias doesn’t exist)Focus is on what creates obstacles to full participation in society Episodic events (e.g. heart attacks) may meet this definition, very context-specificOther illnesses may be episodic (e.g. multiple sclerosis), but they constitute an ongoing, material source of impairmentSometimes conditions may not manifest as a functional limitation or symptom, but the individual can still be treated differently (City of Montreal – this will qualify as “perceived disability”)Other examples include HIV, asthma, epilepsy Federal legislation currently makes it illegal to discriminate on the basis of genetic testing (in particular, insurance policies)What kind of medical information is required to show an employer to establish a disability? (impacts content of duty to accommodate)Need to balance right to privacy to right to information to know how to accommodate Employers are entitled to know enough to satisfy itself that there is a disability and to assess the individual’s work circumstances to accommodate the individual (prognosis, functional restrictions)Employers are not entitled to know the precise diagnosis, medical history, medical charts Employers are entitled to see some medical information from doctorsEmployee does bear onus to share some information so it is beyond an assertionNon-medical professionals can provide this information, but employers can probe as to the nature of their expertise (medical/non-medical)Ouimette v. Lily Cups Ltd., (1999) CHRR 12 D/19Ms. Ouimette was absent from work for 3 days in a 3 week period and was dismissed from her probationary position as a result (based on a policy where probationary employees could be dismissed after 3 days of absence, regardless of the reason)Ms. Ouimette’s absences were due to an allergic reaction (in which her employer indicated it wasn’t necessary to come in) and the flu When Ms. Ouimette was hired, she informed her employer about her back problem, asthma and allergies; these did not impact her ability to work at allComplaint was the basis of transitory illnesses, although there was a dispute at commission about whether asthma could also be provided as evidence of a disabilityCommission indicated that 3 day probationary rule constitutes indirect or systemic discrimination because it adversely impacts individuals with a disability Disability provisions not intended to apply to circumstances where individuals controlled their ingestion of substances (e.g. aspirin, which was known to create an asthma attack for her) because it risks trivializing the principles behind the provision“it is not the handicap that results in protection … it is the denial of equal opportunity, in this instance, where an employer imposes an artificial barrier to employment because of handicap that in fact presents no real inability to do the job”Would also be wrong to stretch meaning of “illness” to include the flu (transitory illness, no expectation that it will have a lasting impact beyond a few days)Dismisses complaintHuman Rights Commission v. Health Care Corp. of St. Johns, 2003 NLCA 13Issue of whether discrimination can occur on the basis of disability if the complainant states she does not have a disability and the employer does not consider her to have a disability (use of sick leave was the basis of whether she should be promoted)Employer opted not to give complainant a promotion because of her “excessive use of sick leave provisions”Argument was that her prior use of sick leave was an indicator of her future performanceHuman rights adjudicator dismissed complaint on the basis that the employer could not establish that discrimination on the basis of disability was the reason that she was rejected for positionTrial judge found no error in adjudicator’s findingsTransient illness that may result in an employee accessing sick leave will not ordinarily constitute a disability, though it may be possible that sick leave demonstrates a “frailty of health” that may result in a disabilityDefinition cannot be so broad as to disrupt integrity of human rights legislationDisability normally proven in 1 of 2 ways:Establishing that complainant has some physical or mental impairment and functional limitations (would be known to complainant, may not be known to complainant) OR Proving that employer believes that the employee has a physical or mental impairment and has/will have a functional limitation in the future Issue in this case is whether employer recognizes Ms. Evans as someone who has had past disabilities, rather than perceiving her to have a disability in the presentEmployer did not believe that Ms. Evans’ ailments were disabling or likely to reoccur and cause functional limitations in the future, so this was a reasonable assessment that there was no perception of disabilityMere use of sick leave records does not prove that Ms. Evans is perceived to have a disabilityNo pattern of illness or injury that would demonstrate permanence Complainant does not have to prove that they have a disability at the time of the employer’s action to ground a complaint in past disabilities Appellant has not established that adjudicator erred in failing to find discrimination on the basis of disability; appeal dismissedThis case demonstrates that human rights law is not a panacea for all circumstances; statutory framework exists for a reason to define scope of disability Syncrude Canada Ltd v Saunders, 2015 ABQB 237Syncrude appealed AHRC decision Mr. Saunders was dismissed from Syncrude and filed a complaint on basis of disability Mr. Saunders had some issues with absenteeism; on one occasion, his request for vacation time was denied and he later called in sick with a migraineOn another occasion, Mr. Saunders broke his hand in a bar fight while intoxicated and went on disability; supervisor did not want him to return to work because of his absenteeism recordThe final incident was Mr. Saunders falling and breaking his band while intoxicated, requiring surgery; Syncrude them terminated him without cause due to his poor performance and absenteeismAfter he lost his job, he started using his cocaine and experienced significant financial precarity Mr. Saunders’ credibility was at issue because his accounts of his previous drug use were inconsistent and he lied about the nature of his hand injuriesDisabilities must entail a “certain measure of severity, permanence and persistence”, individual must have a “substantial limiting and ongoing physical condition” (para 57)Transient illness that may result in an employee accessing available sick leave will not ordinarily constitute a disability, though it may be possible that the use of sick leave demonstrates a frailty of health that can result in a disability (para 58)Unreasonable for Tribunal to conclude that Saunders had established a prima facie case of discrimination on the basis of perceived disability; he provided no evidence of a link or continuity between his termination and perceived disability“It would be impossible to accommodate Saunders without undue hardship given the evidence of his history of patterned absenteeism” (para 93)Dow v. Summit Logistics, 2006 BCHRT 158Mr. Dow filed a complaint on basis of physical and mental disability against his employer and union; physical disability based on the injuries he sustained as part of a motor vehicle accident and mental disability was pain and anxiety caused by physical injuries, harassment and discriminationMr. Dow was prescribed anti-depressants for his mental disability Mr. Dow had a history of absenteeism for various reasons (e.g. motor vehicle accident)To prove discrimination on the basis of mental disability, a complainant must establish that they have a mental disability or are perceived as having a mental disability In this case, a bare assertion of pain or anxiety is not sufficient to establish that he has a mental disabilityNeeds to be something more than “common conditions” or conditions that are generally felt by a lot of people (e.g. anxiety that is not diagnosed)Pain is a symptom, but it is not in itself a disability (contrast to chronic pain syndrome, which is a diagnosed illness)Anxiety is a “commonly experienced emotion” – in this case, Mr. Dow did not have any distinctive diagnosis Mr. Dow was not diagnosed with an anxiety disorder; a prescription for anti-depressants is not adequate evidence on its ownTribunal dismisses Mr. Dow’s complaint because of significant generalizability/lack of evidenceNova Scotia Liquor Corporation v Nova Scotia (Board of Inquiry), 2016 NSCA 28Ms. Kelly filed complaint on basis of gender and mental disability; Commission found that her allegations constituted discrimination On appeal, her sex discrimination complaint was upheld but her disability complaint was dismissedMental disability accusations were on the basis of the disciplinary letters she received while on sick leaveNo distinction to demonstrate that mental disability on the basis of discrimination occurredQuebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27 3 incidents of rejection in an employment context (City of Montreal refused to hire M as a horticulturalist, CUM refused to hire H as a police officer because the pre-employment medical exam in both cases revealed a spinal issue and City of Boisbrand dismissed T because of Crohn’s disease) All 3 individuals filed human rights complaints on the basis of disability Interpreted “handicap” in Quebec Charter context to refer to “physical or mental anomalies that necessarily result in functional limitations” (handicap broadly defined, can be subjectively interpreted to not necessitate the presence of functional limitations)Courts should adopt a “multidimensional approach” of handicap, emphasizes impacts on human dignity, respect, equality rather than biomedical conditionHandicap can be real or perceived, and person may have no limitations in everyday activities other than those created by prejudice and stereotypes Courts must consider the individual’s biomedical condition and the circumstances in which a distinction was made Handicaps can exist without proof of physical limitations or other ailments; emphasis is on effect of distinction, exclusion or preference rather than the precise cause or origin of the handicap All distinctions on the basis of handicap/disability are not necessarily discriminatory SCC concluded there was discrimination against M and T; H’s case was returned to Court of Appeal Duty to InquireDuty to inquire is about sufficient transfer of knowledge Duty to accommodate largely rests with the individual who knows that they require accommodationKnowledge is a key principle Telus – para 29 indicates that policy applies regardless of knowledge, Moore test is sufficient to accommodate cases where employer’s knowledge is relevant General principles of duty to inquire:Stewart v Ontario (Government Services) – employee terminated for poor performance and filed a complaint on basis of disability; case emphasized that duty to accommodate is a collaborative processMs. Stewart did not disclose her disability to her employer, but she argued that her employer should have known about her disabilities Tribunal found that while she genuinely believed that her employer should have known, her belief was entirely speculative Not unreasonable in the circumstances to conclude that she was simply struggling with her job; because there was nothing “more” (objective indicators) to trigger duty to inquireMs. Stewart made a separate allegation that she was harassed on the basis of her disability because she cried at work about her husband’s situation; Tribunal found that this allegation could proceedNeeds to be an observable change in employee (reasonable, objective signs) before duty to inquire is triggered Alexander v Northern Health Authority – employee took 2 weeks off due to an anxiety disorder, and then required a further leave based on a doctor’s certificate for “work related stressors”She returned to work but did not advise her employee that was she suffering from an ongoing disability She experienced performance issues and was later suspended for 1 day; employer advised her to seek counselling to assist with her interpersonal skillsFollowing suspension, she went off work again and provided multiple doctor’s notes She ended up resigning from her position and claimed that her employer failed to inquire about her disabilities Tribunal held that she must establish that she had a disability and her employer knew or ought to have known about her disabilityCites Gardiner v Ministry of Attorney General about when duty to inquire will be engaged:Where employee is taking steps that adversely affect that employee’s employment situation Must be a reasonable basis to be suspicious that the employee’s performance is compromisedAlso cited Martin v Carter Chevrolet Oldsmobile – base assumption cannot be that person has a disability and cannot perform their job In this case, there was no duty to inquire (no reasonable prospect that she would succeed in establishing that her employer should have known or knew that she required accommodation) due to her range of duties (no issue in her completing her duties; her performance was an issue, but she just couldn’t do them well) She was also able to articulately defend her performance and did not raise potential disability issues Tribunal found she was not a “vulnerable” complainant where she was unable to disclose her disability See slide 20Burgess v Stephen W Huk – dental assistant that received 4 reprimand letters at her termination, she made a complaint against her employer on the basis of her gender and religionShe missed a Sunday meeting for work, but she was attending a religious serviceAHRC found that there was no evidence that the employer was aware of her pregnancy or religious observances and she did not request any accommodationShe told one dentist that she was pregnant and a practicing Mormon, but this was not sufficient to establish that she informed her employer (particularly because the dentist was an independent contractor and not her official employer)AHRC affirmed that they are looking for a “marked and noticeable change” to trigger duty to inquire; requires a “substantive change”Warren v West Canadian Industries – Mr. Warren diagnosed with various conditions, submitted a medical note to human resources early in employmentHe complained about various employees (interpersonal issues); memo was provided discussing his employment concernsHe later disclosed that he was suicidal and received a 4 day authorized leave; when he returned to work his schedule was changed and he did not react well to his change in shifts He indicated that he was depressed, but he did not indicate that he had a mental disability; he later provided a doctor’s note about stress-related issues at workDiscrimination established in this case, and Panel found that his mental disability was a factor in his termination However, they found that there was no marked change in his behaviour (because it was consistent throughout) – he was terminated 2.5 weeks after he provided his medical note No overt disclosure, but there are obvious, marked changes in performance Tribunal indicated it is not sufficient to receive a note and not inquire further (must take steps to follow up); asking if follow up is necessary is not sufficient Willems-Wilson v Allbright Drycleaners – employee had a history of mental illness but did not reveal them to the employer; she did disclose that she was having marital problems and received one afternoon a week off to attend counselling Soon after she was hired, her attitude changed at work and started crying and showing signs of distress at work She was also found sleeping in the workplace (said she didn’t feel safe at home)She was eventually hospitalized and requested a leave of absence; when she requested an extension the employer attended the hospital to terminate herShe filed a human rights complaint and succeeded in establishing that discrimination occurred Tribunal rejected argument that employee’s failure to request accommodation relieved duty to inquire; found that her hospitalization made her particularly vulnerable and her employer was obligated to make some inquiries Tribunal emphasized that the employer must focus on the disabling behaviour itself rather than the cause of the behaviour Lethbridge Industries Ltd v Alberta – individual had a long employment history and missed a significant amount of work, was terminated due to excessive absenteeismEmployer changed lights in his office to improve his migraine symptoms and took various steps to accommodate his needs (e.g. ability to leave with migraines)Question was whether employer knew that he had a disability Employee took a 1 month leave to re-evaluate his medications, but that was without his doctor’s authorizationDiscrimination established on mental and physical disabilityDespite denying direct knowledge, employer knew that he was taking prescription medication and knew he was taking time off to evaluate his medicationsEmployer had a belief that he suffered from mental health issues, and by believing it was a mental health issue that was sufficient to trigger the duty to inquire an offer accommodation as needed Court indicated that this did not create a non-specific duty to make medical inquiries of employees When the absences increased to a level where termination was considered, they should have inquired CUPE v Ontario (City) – grievor terminated for excessive termination; employer didn’t inquire about nature of specialist he required (IBS vs mental illness issues)Complicated medical diagnosesEmployers can dismiss employees for excessive absenteeism on the basis of a disability if they considered all of the relevant factors Employee was diagnosed for a mental illness but he was untreated Employer failed to make further inquiries upon learning of the specialist referral Arbitrator reinstated employeeCase demonstrated 2 pronged analysis (contemplation of adverse steps and reasonable basis to suspect conditions)RemediesSection 32 of AHRA – human rights tribunals are statutory bodies and do not have inherent jurisdiction; they are limited by the scope of section 32 Tribunals can order the following:Cease contraventionRefrain from committing contraventions in future Make available to the person any opportunities/privileges that they were denied (e.g. a promotion)Compensate the person for wages or income lost or expenses incurred Any other action the tribunal considers proper to put the complainant in a position they would have otherwise been in (expectations)Allows tribunals to grant damages for injury to dignity, etc (general damages)General damages not scientifically based, based on 2 factors:Objective seriousness of conduct (prolonged, hurtful, significant)Effect on complainant (impact, difficulties – e.g. mental health issues, financial impacts)No statutory limit on damage awards; Alberta has had a reputation for being on the low end of general damages ($10,000 perceived to be the cap, $3000 on low end); this has changed after Mobil Oil Mobil Oil – inadequate damage awards undermine the purpose and mandate of human rights legislation; low damage awards can perpetuate discrimination because they can be perceived as a license to discriminateDamage awards have been subject to an “upward creep” ($20,000 - $25,000, creeping up)BCCA upheld an award of $75,000; Ontario case where Tribunal awarded $150,000Bardal factors do not apply in human rights context; human rights tribunals apply more of a but-for test Tribunals have to guess how long the employee would have employed at that workplaceEmployees do not have duties to mitigate and take reasonable steps to find other employment; tribunals can account for emotional difficulties, etc which might slow down this processQuantum set by “but-for the discrimination – would the employee have worked indefinitely for the employer?”Employees might have moved to other jobs, employers might have ceased to exist, etcCan still be a claim for wage losses if the employee takes a lower-paid job Employees should keep very good records of their job search activities Complainant’s efforts will always be assessed against current job market or industry; not expected to embark on an immediate job searchComplainants do not have to take the first job that comes along (recognition of equivalency of position)They do have jurisdiction to order reinstatement if it is a workable solution (e.g. Cowling)General reluctance to order apologies because they interfere with free expression Walsh v. Mobil Oil Canada, 2013 ABCA 238 Ms. Walsh alleged that she was discriminated on the basis of gender by her former employer, Mobil Oil Canada; she was fired in retaliation for filing her complaintCausation analysis is required to establish link between foreseeability and duty to mitigate to determine the amount of wage loss damages sustained as a result of discriminatory conduct No statutory limit in Alberta for amount of damages available for mental distress, injury and loss of dignity flowing from discriminatory conduct; amount of damages for mental distress requires consideration of effect the discrimination had on the complainant and whether the discrimination was engaged in willfully or recklessly ................
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