What Was Said

Significant quotes from recent decisions.

“… I have found in this decision … that the 2005 agreement remains connected to the foundational principles in such a way that there is insufficient evidence to find a breach of the Code. The parties are at liberty to negotiate a new compensation methodology which incorporates, among other things, the developments in the midwifery profession, the ongoing demand for services, the government’s changing health care priorities, economic and labour market forces and the research which has amassed since 1993 on the effects of gender-based discrimination in compensation. However, what has happened in this case is that the MOH has unilaterally withdrawn from the 1993 principles and methodology, leaving the compensation of midwives exposed to the well-known effects of gender discrimination on women’s compensation.”


Human Rights Digest 19-6, September 2018

“… the issue on appeal has, at times, been characterized by the parties and the courts below as being whether the Tribunal has the “jurisdiction” to consider direct attacks to legislation or whether the courts are the better forum to ascertain the validity of legislation. However, distilled to its essentials, the question before the Tribunal was whether legislative entitlements under the Indian Act fell within the definition of a service under the CHRA. As such, the Tribunal was determining whether the complaints concerned a discriminatory practice as defined by the CHRA.

Human Rights Digest 19-5, August 2018

“The LSBC's decision also reasonably balanced the severity of the interference with the Charter protection against the benefits to its statutory objectives. To begin, the LSBC's decision did not limit religious freedom to a significant extent. The LSBC did not deny approval to TWU's proposed law school in the abstract; rather, it denied a specific proposal that included the mandatory Covenant. Indeed, when the LSBC asked TWU whether it would 'consider' amendments to its Covenant, TWU expressed no willingness to compromise on the mandatory nature of the Covenant. The decision therefore only prevents TWU's community members from attending an approved law school at TWU that is governed by a mandatory covenant.”

Human Rights Digest 19-4, July 2018

“Before the Tribunal, the complainant did not seek to provide an explanation of the connection between street homelessness and Aboriginal background or between physical and mental disabilities and homelessness. Rather, it simply relied on statistical evidence to show that Aboriginal people and those with disabilities were more prevalent among the street homeless than in the general population. Intuitively, the association between homelessness on the one hand and Aboriginal heritage or disability on the other, does not appear to be mere coincidence. It is, however, a complex association. In the absence of evidence or any articulated theory, the Tribunal found the statistical correlations to be insufficient to demonstrate that prohibited grounds of discrimination were ‘a factor’ for the purposes of establishing prima facie discrimination.”


Human Rights Digest 19-3, May/June 2018

“The building of a Nation-to-Nation relationship cannot be more significant than by stopping the unnecessary removal of Indigenous children from their respective Nations. Reforming the practice of removing children to shift it to a practice of keeping children in their homes and Nations will create a channel of reconciliation. This is the true spirit of reconciliation. This is the goal. This is hope. This is love in action. This is justice.”


Human Rights Digest 19-2, March/April 2018

"… while the person in control of the complainant's employment may be primarily responsible for ensuring a discrimination-free workplace — a responsibility that is recognized in s. 44(2) of the Code — it does not follow that only a person who is in a relationship of control and dependence with the complainant is responsible for achieving the aims of the Code. Rather, the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions. This means that, in addition to bringing a claim against their employer, the complainant may also bring a claim against the individual perpetrator. The existence of this additional claim is especially relevant when the discriminatory conduct of a co-worker persists despite the employer having taken all possible steps to stop it."


Human Rights Digest 19-1, January/February 2018

"In summary, the complainant had an individual right under the Code to make a claim of discrimination against the NRHA, separate and apart from any other rights she enjoyed as a unionized worker under the collective agreement. The human rights issues in this case are much broader than simply whether there was just cause to terminate the complainant's employment which was not an issue that the Chief Adjudicator could consider because it involved the operation of the collective agreement."


Human Rights Digest 18-8, November/December 2017

"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
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