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  • May/June 2017 Human Rights Digest
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The Majoritarian Blind Spot

Justice Clément Gascon of the Supreme Court of Canada just did something startling, and excellent. He wrote a dissent in Stewart v. Elk Valley Coal Corp. that drives some truck-size holes through a sloppy majority decision from Chief Justice McLachlin. Too bad he stands alone, but he certainly stands out. And his decision is a relief.

Stewart v. Elk Valley is a decision about drugs, safety and big machinery. This combination seems to seriously interfere with the reasoning capacities of adjudicators and judges. Gascon J. states at the beginning of his judgment: “I fully appreciate the safety-sensitive environment at the workplace of Elk Valley, and how that environment motivates strict drug policies for employees. Nevertheless, such policies, even if well-...

What Was Said

Supreme Court of Canada Upholds Termination for Drug Use

"… I see no need to alter the settled view that the protected ground or characteristic need only be “a factor” in the decision. It was suggested in argument that adjectives should be added: the ground should be a “significant” factor, or a “material” factor. Little is gained by adding adjectives to the requirement that the impugned ground be “a factor” in the adverse treatment. In each case, the Tribunal must decide on the factor or factors that played a role in the adverse treatment. This...

Human Rights Digest 18-4, May/June 2017