What Was Said

Significant quotes from recent decisions.

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

"I am not satisfied, on the facts of this case, that an adjudicator appointed pursuant to the Code is a better fit for determination of the dispute. The issues raised in this case are matters that are routinely decided by labour arbitrators, involving determinations as to whether there was just cause to dismiss the complainant, whether the complainant breached the terms of the MOA, whether the complainant established a prima facie case of discrimination on the basis of disability, and if a case of prima facie discrimination was made out, whether the applicant established that it made reasonable efforts to accommodate the complainant to the point of undue hardship and/or the conditions it imposed were bona fide occupational requirements.

Human Rights Digest 17-5,July 2016

"The hearings in this matter were held in a spirit of reconciliation, with an overarching goal of maintaining an atmosphere of peace and respect. Respect for all involved was paramount and, given the nature of the case, respect for Aboriginal peoples not only participating in the proceedings, but also following the proceedings in person and on the Aboriginal Peoples Television Network. Fostering this atmosphere of peace and respect is of paramount importance considering the Tribunal's key role in determining fundamental human rights and in safeguarding the public's confidence in the administration of justice, especially for Aboriginal peoples.

In dealing with the remaining remedial issues in this case, we should continue to aim for peace and respect. More importantly, I urge everyone involved to ponder the true meaning of reconciliation and how we can achieve it. I strongly believe that we have an opportunity, all of us together, to set a positive example for the children across Canada, and even across the world, that we are able to do our part in achieving reconciliation in Canada. My hope and goal is that, for generations to come, people will look at what was done in this case as a turning point that led to meaningful change for First Nations children and families in this country. We, the Panel and parties, are in a privileged position to continue to contribute to this change in a substantial way.

On this journey towards change, I hope trust can be rebuilt between the parties. Effective and transparent communication will be of the utmost importance in this regard. Words need to be supported by actions and actions will not be understood if they are not communicated. Reconciliation cannot be achieved without communication and collaboration amongst the parties. While the circumstances that led to the findings in the decision are very disconcerting, the opportunity to address those findings through positive change is now present. This is the season for change. The time is now.

Finally, in keeping with the spirit of reconciliation and expediency in this matter, the Panel had hoped the parties would have met a few times by now and discussed remedies. Each party has information and/or expertise that would assist those discussions and be of benefit in resolving this matter more expeditiously. While the Panel was required to issue this ruling, it continues to encourage the parties to meet and discuss the resolution of this matter. As always, the Panel is available to assist and remains committed to overseeing the implementation of its orders in the short and the long term.”

Human Rights Digest 17-4, May/June 2016
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