What Was Said

Significant quotes from recent decisions.

"On its face, the [Human Rights Act] set up to be a “user-friendly” way of addressing alleged human rights violations. In many cases, the resolution of alleged violations will be straightforward and the process meaningful to the parties. Realistically, however, many human rights complaints involve highly complex legal and technical issues that places the process out of reach for people who do not have legal training or access to legal or other services to assist them. When a disability is added to the equation, ferrying a complaint through the process can foreseeably become a frustrating, drawn-out and prolix exercise, regardless of how the process is set up."

 

Human Rights Digest 18-7, October 2017

"While it was clear mental illness is a protected characteristic under the Human Rights Act, the Panel ignored the evidence of the Minister there were programs available to Laura through both Social Assistance and CMHA and thus there was a reasonable explanation for what might be perceived as otherwise discriminatory behaviour. It was an unreasonable conclusion simply to hold because the DSP specifically excluded mental illness the Minister provided no reasonable explanation. It is not the role of the Commission or its Panel, nor is it the role of the court to tell government how to run their programs."

 

Human Rights Digest 18-6, August/September 2017

1.      Definition of Jordan’s Principle

A.   As of the date of this ruling, Canada shall cease relying upon and perpetuating definitions of Jordan’s Principle that are not in compliance with the Panel’s orders in 2016 CHRT 2 [83 C.H.R.R. D/207], 2016 CHRT 10 [83 C.H.R.R. D/266], 2016 CHRT 16 [84 C.H.R.R. D/111] and in this ruling.

 B.   As of the date of this ruling, Canada’s definition and application of Jordan’s Principle shall be based on the following key principles:

i.       Jordan’s Principle is a child-first principle that applies equally to all First Nations children, whether resident on or off reserve. It is not limited to First Nations children with disabilities, or those with discrete short-term issues creating critical needs for health and social supports or affecting their activities of daily living.

ii.      Jordan’s Principle addresses the needs of First Nations children by ensuring there are no gaps in government services to them. It can address, for example, but is not limited to, gaps in such services as mental health, special education, dental, physical therapy, speech therapy, medical equipment and physiotherapy.

iii.     When a government service is available to all other children, the government department of first contact will pay for the service to a First Nations child, without engaging in case conferring, policy review, service navigation or any other similar administrative procedure before funding is provided. Once the service is provided, the government department of first contact can seek reimbursement from another department/government;

iv.     When a government service is not necessarily available to all other children or is beyond the normative standard of care, the government department of first contact will still evaluate the individual needs of the child to determine if the requested service should be provided to ensure substantive equality in the provision of services to the child, to ensure culturally appropriate services to the child and/or to safeguard the best interests of the child. Where such services are to be provided, the government department of first contact will pay for the provision of the services to the First Nations child, without engaging in case conferring, policy review, service navigation or any other similar administrative procedure before funding is provided. Once the service is provided, the government department of first contact can seek reimbursement from another department/government.

v.      While Jordan’s Principle can apply to jurisdictional disputes between governments (i.e., between federal, provincial or territorial governments) and to jurisdictional disputes between departments within the same government, a dispute amongst government departments or between governments is not a necessary requirement for the application of Jordan’s Principle.

 

Human Rights Digest 18-5, July 2017

"… 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 is a matter of fact. If a protected ground contributed to the adverse treatment, then it must be material …"

Human Rights Digest 18-4, May/June 2017

"… the evidence clearly demonstrates that once the applicant indicated to the personal respondent that she would no longer tolerate his sexual behaviours, the personal respondent deliberately set out to create a record of errors in the applicant's performance. This record was built on unsubstantiated errors or errors about which the applicant had never previously been advised, or given an opportunity to respond to …"

Human Rights Digest 18-3, April 2017

… reliance on Health Canada's non-approval of medical marijuana under the Food and Drugs Act is not a sufficient justification in the face of numerous appellate decisions that have found, based on anecdotal and expert evidence, a significant benefit to some patients from using medical marijuana. The expert evidence tendered in this case supports the conclusion that medical marijuana was medically-necessary and beneficial for treating this complainant's chronic pain.

 

Human Rights Digest 18-1, January 2017

“[T]he statute [N.W.T. Human Rights Act] does not specifically authorize an adjudicator to sanction recklessness in and of itself. The focus of my assessment is whether the City willfully discriminated, such that punishment and denunciation are warranted …

The City's employees were dismissive of the doctors' notes and made no follow-up inquiries. They presumed to know better than A.B. even after she explained why the proposed schedules would not work. They maintained the formalistic strategy of dealing with A.B. as if she were asserting disability, and used the complainant's comments about vacation and date nights to cast suspicion on her motives.

The conduct was willful and harsh, and it was pursued over a period of months under legitimate protest from the complainant.”

 

Human Rights Digest 18-1, January 2017

“I am compelled to return to the Board's reasons.  Although lengthy, they were anything but clear.  After participating in a long process, a complainant should not be at risk of having a finding of discrimination set aside because of a board's imprecise reasoning.  Similarly, a respondent who has been found to have discriminated, is entitled to know what aspects of its behaviour attracted censure, so that those conclusions may be addressed remedially or meaningfully challenged on appeal, if so advised.  Neither parties, this Court, nor those interested in a human rights decision should have to struggle to ascertain a board's intention.”

 

Human Rights Digest 17-7, October 2016

“[A] blanket policy to deny funding for all matters arising out of human rights complaints can, in some cases, have a discriminatory result for persons with certain disabilities. Persons who lack the ability to prepare and present their complaints are entitled to accommodation to the point of undue hardship. Persons like Ms. Portman, must have meaningful access to the human rights complaint process. The Legal Services Board's blanket policy does not allow for these important individual distinctions. It is up to the Government of the Northwest Territories to develop appropriate policies which are in accordance with this decision and the Human Rights Act”.

 

Human Rights Digest 17-7, October 2016

"We therefore find that we cannot award damages for injury to dignity, feelings and self-respect. There is no evidence of bad faith or abuse of power, and conduct on the part of government cannot be said to have been clearly wrong simply because this Tribunal determines, after the fact, that it is discriminatory.

Human Rights Digest 17-6, August/September 2016
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