View Point

Commentary on new developments in human rights law published in the Human Rights Digest newsletter.

Only British Columbia and Nunavut do not have human rights commissions. Nunavut's human rights system is still very new, and experimental. British Columbia has no such excuse.

The history of human rights in British Columbia is rocky. Twice in twenty years, the Government of British Columbia has abolished its Human Rights Commission – once in 1983 under Bill Bennett's Social Credit administration, and again in 2002 under Gordon Campbell's Liberals. Gordon Campbell turned legitimate concerns about delays in the Commission's screening process into a rationale for abolishing the Commission entirely and putting in place a “stand-alone” Tribunal. In 2012 British Columbia has been without a commission for a decade, and it shows. It's time to bring it back.

Bringing back the Commission does not mean getting rid of the Tribunal, which adjudicates and settles complaints. The Tribunal must stay. But human rights commissions do not adjudicate complaints and have many other roles than screening complaints at the initial stage. The standard roles of human rights commissions are multiple, because the elimination of discrimination, if we are serious about it, requires a many-pronged approach, including education, research, public reporting, monitoring, initiating systemic complaints, and, sometimes, holding open public inquiries and consultations on urgent and difficult human rights issues. All of these are means to foster a culture that is attuned to human rights and aware of the ways that discrimination occurs and the harms caused by it.

B.C.'s human rights system has been hollowed out. In the absence of a human rights commission, the B.C. Human Rights Coalition, with financial support from the Attorney General, provides some informational workshops about aspects of human rights law, and refers people who need legal representation to the Community Legal Assistance Society ("CLAS"), a publicly funded clinic. CLAS provides representation to some human rights complainants, but a majority of those who go to hearings now are unrepresented, and, we have learned, being unrepresented increases the likelihood that a complainant will lose.

For a decade in British Columbia, there has been no body responsible for protecting the larger public interest in the elimination of discrimination, or for undertaking the more complex tasks that are designed to identify discrimination and prevent it from occurring. There has been no independent public body with a mandate to provide public education on human rights issues, make special reports to the Legislature, address systemic discrimination, or ensure that complainants receive the legal advice and representation they need.

In 2012 British Columbia has no culture of human rights. There is a deep silence. That silence sends the message that there are no serious human rights issues in British Columbia; there are merely individual disputes, of no consequence to the community at large.

But this is certainly not the case. In other provinces, human rights commissions produce public reports and hold public consultations on the human rights of persons with mental health problems, racial profiling by the police, and systemic discrimination against migrant workers. These are issues in British Columbia too and they warrant serious public airing and discussion.

A human rights commission that can carry out the crucial roles of research, review, policy development, public education, community consultation, and inquiry is necessary to keep British Columbians alert to human rights issues, fully informed, and engaged in building an inclusive society.

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Now that Parliament is back in session, the Senate will give a cursory review to Bill 304, which repeals s. 13 of the Canadian Human Rights Act, before it passes into law. Section 13 prohibits the communication of hate messages by telephone or on the Internet. As noted in last month’s column, it has been used mainly against prominent white supremacists like John Ross Taylor and Ernst Zündel.

Brian Storseth, M.P., backed by Prime Minister Harper, has declared that s. 13 is an unwarranted restriction on the free speech of Canadians. White supremacists are celebrating. On the Stormfront website, a blogger who calls himself canadafirst has written "This is a huge victory for freedom in Canada. However, we still have other unjust Zionist 'hate' laws that need to go".

On the one hand, Harper frees speech that is racist and gay-hating from the modest restrictions of human rights legislation. On the other hand, Harper is actively suppressing the speech of those who criticize his government, or who disagree on issues of human rights, women's rights, social policy or the environment.

The coalition called Voices states: "Unfortunately, in recent years, the voices of numerous civil society organizations that have acted in the public interest, and contributed to the diversity of Canadian perspectives, have not been respected. Instead, they have been ordered or pressured into silence, sabotaged by dubious political appointments, defunded, gutted, or effectively transformed into tools for the government's partisan agenda". (See http://voices-voix.ca/en)

Among the actions that Voices refers to are: the defunding of the Court Challenges Program, which gave Canadians some access to the use of their constitutional equality rights; the change in the criteria for funding women's organizations so that now neither research nor advocacy can be funded; the denial of funding for Sisters in Spirit, the ground-breaking research project of the Native Women's Association of Canada which has collected evidence of more than 600 murders and disappearances of Aboriginal women and girls; the cuts and elimination of funding to many key women’s and human rights organizations, as diverse as the Child Care Advocacy Association of Canada, the multi-faith coalition KAIROS, the Canadian Arab Federation, Canada Without Poverty, and the Canadian Council for International Co-operation.

It is not only civil society speech that is being curtailed. Harper has also made concerted attacks on knowledge itself; knowledge that Canadians need to understand who we are and to shape social and environmental policy. He has cancelled the long form census, eliminated the National Council of Welfare, cut funding for the Canadian Foundation for Climate and Atmospheric Sciences, closed the National Round Table on the Environment and the Economy, shut down the Experimental Lakes Area, and cut funds for Library and Archives Canada, among other things.

Civil servants whose job it is to be watchdogs on government have also been fired, misrepresented or obstructed, including the former President of the Canadian Nuclear Safety Commission, the Parliamentary Budget Officer, the Chief Electoral Officer, the Chairperson of the Military Police Complaints Commission, and the Chief Statistician.

In sum, while white supremacists are winning a new freedom to speak in Canada, those who believe in human rights, knowledge, and accountability are losing theirs.

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The Harper Government has decided to repeal s. 13 of the Canadian Human Rights Act. This section prohibits the communication of hate messages by telephone or on the Internet. Since 1977, it has been used mainly against prominent white supremacists, such as John Ross Taylor and Ernst Zündel, who have made careers of promoting hatred against Jews and non-whites.

The three 2007 human rights complaints regarding Mark Steyn’s article on the "rising influence of Islam" broke the pattern, and the media reaction was hysterical. Mark Steyn, Ezra Levant and others began a furious anti-human rights campaign. Human rights commissions became "kangaroo courts" and jack-booted oppressors. Canada’s modest and carefully enforced anti-hate provisions were transmogrified into gigantic threats to freedom of speech. The fact that the complaints against Steyn’s article were summarily dismissed at an early stage was ignored.

Having human rights means that any person can make a complaint. Whether it is a legitimate complaint in law is what human rights commissions and tribunals are there to determine. Outrage at Mark Steyn being "dragged" before a human rights body is entirely misplaced. Steyn is a journalist and he wrote an article that he knew would arouse anger and cause distress to many in the Islamic community. Members of that community have the right to make human rights complaints. The fact that they did, and that commissions and tribunals considered, and then dismissed them, should lead us to conclude that the system works.

However, the Harper Government has chosen to get on the anti-human rights band wagon and support a private member’s Bill, introduced by Conservative backbencher, Brian Storseth, which repeals s. 13 of the Canadian Human Rights Act. Bill C-304 received 3rd reading on June 6, 2012, and, while it will be reviewed by the Senate in the fall, its passage is a fait accompli.

Mr. Storseth claims that repeal is essential to protect freedom of speech in Canada. However, this is the kind of speech that Mr. Storseth wants to be "free":

We believe that this country was built by white people, and that minorities... are ruining this nation.

We demand a crime-free, white-ruled society without the daily fear of rape, robbery, and murder. All immigration from non-white nations must be stopped. Mud people should be repatriated to the lands of their ancestors. (Chilliwack Anti-Racism Project Society v. Scott (1996), 27 C.H.R.R. D/446 at § 43 and 46 (C.H.R.T.))

Mr. Storseth and his fellow Conservatives contend that the hate propaganda provisions of the Criminal Code are sufficient. However, as David Matas pointed out to the Justice Committee when it was considering this Bill, the notion that it has to be either the Criminal Code or nothing will result in nothing being done because the police and the courts view the Criminal Code as too draconian.

Going back to only Criminal Code protections is a throw back to the days before human rights legislation. We learned from those days that ordinary laws, in the hands of the courts, provided no protection from discrimination. Human rights legislation is necessary. The Harper Government has now taken away the right of individual Canadians to make complaints when we believe that internet speech promotes hatred.

The upshot of Bill C-304 is that racism, anti-Semitism, and homophobia will be more difficult to counteract in Canada because we are "free" to express them and publish them on the internet. When Canadians can disseminate hatred, but not act to stop it, we are gagged, not freed.

Shelagh Day, President & Senior Editor, Canadian Human Rights Reporter

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A founder of Canadian human rights protection, Saskatchewan, is witness to ominous developments that worry rights advocates across the country: the abrupt and involuntary departure, without cause, of several senior staff at the Saskatchewan Human Rights Commission, among them the supervisor of mediations and investigations, and the resignation or retirement of other key personnel.

These surprising moves come in the wake of legislation abolishing the Saskatchewan Human Rights Tribunal last year without meaningful consultation and input from human rights NGOs. Many are wondering where human rights protection in the province is headed.

Recent events seem to set back access to human rights protection in the province 40 years. Though the original Saskatchewan Bill of Rights Act, 1947, contained antidiscrimination provisions, there is no reported case of a victim of discrimination actually getting justice under that statute. It doesn't take rocket science to figure out why: the legislation left complainants on their own to advance their claims before the courts. How many marginalized victims of discrimination can afford to hire a lawyer and launch their own court proceedings? In 1972, after 25 years of this ineffectual approach, the Saskatchewan Human Rights Commission was established, with power to investigate complaints and take them to hearing before a specialized tribunal. In 1979, The Saskatchewan Human Rights Code equipped the Commission with extensive authority to overcome systemic barriers at work, in education, and with regard to public services. The Commission — and Saskatchewan  — were recognized as national leaders in human rights protection.

In the past three years, the model established in the 1970s has been seriously eroded. The government dismantled the province's Human Rights Tribunal, saying that complaints must be taken to court. Legislative amendments give the Chief Commissioner the last word as to who would get their "day in court" and make his discretion complete. He need only declare,  "having regard to all the circumstances of the complaint, a hearing of the complaint is not warranted". Complainants whose cases are dismissed by the Chief Commissioner have no avenue of redress except to apply for judicial review by the courts at their own expense. Those 25 static years under the Saskatchewan Bill of Rights tell us how that will go!

This seems to signal that leadership in human rights enforcement seems to have moved from the Commission, a deliberative body, to the office of the Chief Commissioner alone. Statements from the Chief Commissioner signal that the new emphasis of the Commission is "directed" mediation. Just how this mediation is supposed to be effective in the absence of a credible rights enforcement process, is a puzzle. The recent departures have the left the Commission with no lawyers on staff to advise investigators on a daily basis, to carry cases forward to the Court of Queen's Bench and beyond, or to serve the Commission in any other capacity. For a complainant with no hope of having his or her case taken forward vigorously and effectively, "mediation" may be simply another term for "give up now rather than later".

This human rights crisis is not just about Saskatchewan. What has happened here may have a ripple effect across Canada, a country that has adhered to some significant international norms of human rights protection, like the "Paris Principles" approved by the United Nations. These principles call on governments to establish adequately funded independent human rights agencies with the broadest mandate possible, not just to promote but also to protect human rights. In particular, the Paris Principles expect human rights commissions to engage with marginalized groups and to afford members of those groups access to justice, to an adjudicative process to determine the merits of their claims, and to effective remedies for violations of their human rights.

Saskatchewan is not isolated from these international norms. Changing the mandate and vision of the Human Rights Commission cannot be left to the exclusive purview of the government or the Chief Commissioner, because human rights belong to the people, especially marginalized people, and their views are central to this discussion. Adhering to the spirit of the Paris Principles means holding public consultations throughout the province into the next generation of human rights legislation and its administration. This should have been done three years ago. It must be done now.

The way forward should entail restoring the tribunal system to bring this province back in line with the rest of Canada, establishing true independence from government in the appointment of Commission members, beginning with the Chief Commissioner and positioning the Human Rights Commission as an independent body responsible to the people of Saskatchewan through the legislative assembly as a whole.

Finally, the legislative assembly must provide adequate funding to the Commission so that it is able to do an effective job in both promoting and protecting human rights.

Guest Column by Ken Norman, Professor of Law, University of Saskatchewan;
Mary Eberts, Ariel F. Sallows Chair of Human Rights, University of Saskatchewan; and
Alex Neve, Secretary General, Amnesty International Canada.

(An earlier version of this article was published in the Regina Leader-Post April 24, 2012.)

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The Government of Canada is appealing the April 18, 2012, decision of the Federal Court (CHRR Doc. 12-3015), which cleared the way for the complaint of the First Nations Child and Family Caring Society (“FNCFCS”) to proceed. The Government will try again in the Federal Court of Appeal to stop this complaint from proceeding to a hearing on the merits.

The basic allegation of FNCFCS is that the Government of Canada under-funds child welfare services for on-reserve First Nations children. Provinces fund child welfare services better, and FNCFCS says that the federal government’s under-funding of child welfare services has a systemic discriminatory impact on the lives of Aboriginal children living on reserves.

The Government of Canada asked the Canadian Human Rights Tribunal to dismiss the complaint on a preliminary motion arguing that the complaint is not properly grounded in the law because: (1) funding is not a service within the meaning of the Canadian Human Rights Act, and (2) the complaint relies on an improper comparison between federal and provincial governments.

The Tribunal dismissed the complaint on the grounds that the Act does not permit a comparison between services provided by two different service providers to two different sets of recipients. In other words, FNCFS cannot compare services provided by the federal government to on-reserve children to services provided by provincial governments to off-reserve children. The Tribunal concluded that, in the absence of a proper comparator group, there could be no finding of adverse differential treatment against the Government of Canada, and so the complaint could not proceed.

The Federal Court of Canada overturned this Tribunal decision, breathing some common sense into interpretation of the Act. The Federal Court pointed out that there are many complaints in which the requirement that there be a direct comparison with another person or group who is receiving the same service from the same service provider is not possible or relevant. In many disability cases, a person with a disability does not have someone to compare himself to, but must request the different and particular treatment that will help him to overcome barriers. As the Court notes, comparison is an evidentiary tool that can illuminate how discrimination works in a particular case. But it is not a requirement of the law.

With respect to Aboriginal people, the situation is distinct. The Government of Canada provides some services only to Aboriginal people on reserves. Similar services — health, education, child welfare —are provided to other Canadians by provincial or territorial governments. If the Canadian Human Rights Act cannot apply when Aboriginal people wish to complain that a service provided only to them is so deficient that it constitutes systemic discrimination, the Act cannot respond to the realities of their lives.

When the Government finally, in 2007, repealed the statutory bar to human rights complaints being filed against Band Councils or the Government of Canada when they were acting under the Indian Act, Minister Jim Prentice said that Aboriginal people could now file complaints regarding access to services or the quality of services available to them on reserve. Nonetheless, before the Tribunal and the Federal Court, the Government of Canada has argued exactly the opposite. Aboriginal people cannot complain about the quality of a service provided only to them —says the Government of Canada —because they must make a comparison, and they have no other group to compare themselves to.

The Federal Court found that this interpretation was unreasonable because it excludes First Nations Canadians from protection when services are provided only to Aboriginal people.

Now the Government of Canada will appeal. The Assembly of First Nations finds the Government of Canada’s conduct contradictory. On the one hand, at the April 2012 United Nations Forum on Indigenous Peoples Canada provided assurances that it is committed “to promoting reconciliation between the Aboriginal and non-Aboriginal population in Canada”. On the other hand, at home, the Government of Canada’s approach to this case “is completely adversarial, contrary to reconciliation and partnership and…a continuing and deliberate violation of the rights of…First Nations children”.

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Gwen Brodsky, Shelagh Day and Yvonne Peters have authored an important new report entitled Accommodation in the 21st Century. The report describes the post-Meiorin (35 C.H.R.R. D/257) legal landscape for litigating the substantive equality rights of people with disabilities in Canada and identifies new “knots in the jurisprudence” that are currently setting back efforts to make employment and services more inclusive for people with disabilities.

Thirty years ago, for people with disabilities living in Canada, concepts of discrimination and equality were new, unformed and relatively untested. The recognition of disability-related barriers as a matter for human rights concern and scrutiny represented a qualitative change in the understanding of the disability experience. The inclusion of prohibitions against discrimination based on disability in statutory human rights legislation offered people with disabilities the prospect of recognition as equal human beings and redress for their chronic exclusion and social and economic disadvantage.

After the introduction of these protections, there was incremental progress in cases like Canadian Odeon Theatres Ltd. v. Huck (6 C.H.R.R. D/2682), which clarified that public places, like movie theatres, needed to be modified to make space for people with disabilities. But, the report’s authors note, it was the Supreme Court of Canada’s decisions in Meiorin and Grismer (36 C.H.R.R. D/129) that ignited a larger aspiration for equality in employment and services and genuine optimism among people with disabilities. Together, Meiorin and Grismer offered the promise that human rights legislation would take adverse effects discrimination seriously, and that the duty to accommodate would engage with systemic obstacles to equality.

The report finds, however, that the promise ofMeiorin and Grismer is now under attack. The post-Meiorin and Grismer case law reveals disturbing trends. Perhaps because these decisions tightened up the law on respondent justifications, by integrating the duty to accommodate to the point of undue hardship into the bona fide justification defence, respondents have made efforts to prevent complainants from advancing beyond the prima facie discrimination stage. There has been increased pressure to complicate the test for a prima facie case of discrimination. The result is new conflict and confusion in the jurisprudence, particularly concerning the meaning of discrimination, and where the analytical line should be drawn between prima facie discrimination and justification.

The respondent push-back has resulted in new knots in the jurisprudence, which the authors describe and attempt to untangle. They identify the efforts being made to return to a minimalist version of accommodation — by narrowing the definition of discrimination and returning to an emphasis on stereotype; by applying formalistic versions of comparator group analysis, which defeat legitimate claims and distort accommodation analysis; and by adopting too narrow definitions of services.

Since Meiorin and Grismer were handed down, the United Nations General Assembly adopted the Convention on the Rights of People with Disabilities (“CRDP”), which Canada ratified in 2010. The CRDP restates and reinforces the promise of transformation and inclusion that the two landmark Supreme Court of Canada decisions in Meiorin and Grismer hold out.

Since Canadian human rights law must now be interpreted in light of the CRDP, the authors conclude that, in the 21st century, adjudicators and governments should be striving to move us, with all speed, towards the goal of full inclusion. In particular, they conclude that the Supreme Court of Canada needs to renew its recognition that the fulfillment of the rights of persons with disabilities requires far-reaching, deliberate and systemic change to workplaces and services.

Accommodation in the 21st Century can be found on the Canadian Human Rights Commission website.

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It is hard to win legal victories for poor people in Canada. The B.C. Human Rights Tribunal just handed down a decision (CHRR Doc. 12-0023) that defeats the purpose of the Code that should protect the poorest and most disadvantaged members of our community from discriminatory practices.

Pivot Legal Society, a non-profit society located in Vancouver's Downtown East Side — which is Canada's poorest neighbourhood — filed a human rights complaint against the Ambassador Program that is run by the Downtown Vancouver Business Improvement Association and funded, in part, by the City of Vancouver.

The complaint was filed by Pivot on behalf of homeless street people. The job of the Ambassadors, apart from assisting tourists, is to roust homeless street people who are sleeping or sitting on the sidewalks and in doorways, and persuade them to move on.

The Tribunal accepted that disproportionate numbers of homeless street people are Aboriginal, drug-addicted and have mental health problems. Consequently, it accepted that they are a class of persons protected by theCode.

The Tribunal also accepted that the Ambassadors did "remove" homeless people from public places by talking to them, waking them if they were sleeping, and persuading them to move on. The Tribunal found that being asked to leave a public park, or other public area, when people are sleeping or resting, constitutes adverse treatment. It conveys the message that the individual is socially undesirable, and it also causes the individual to lose the use and enjoyment of public space.

Despite this line of rulings, the Tribunal dismissed the complaint because it found that Pivot had not established a connection between the adverse treatment and the protected grounds. This is an entirely unpersuasive conclusion.

The Ambassadors own records showed that they were "removing" hundreds of people who were sleeping or sitting on the street in public places over a period of months. The people the Ambassadors were "removing" were street homeless people, whom the Tribunal found were protected by the grounds of race, ancestry, and physical and mental disability, and the Tribunal concluded that the "removals" constituted adverse treatment.

The complaint was still rejected. The problem apparently was that Pivot did not bring forward individual homeless people to testify, and, according to the Tribunal, this testimony was necessary. There was no evidence, the Tribunal said, that Aboriginal persons or drug-addicted persons were targeted, stereotyped, or treated as suspicious.

The Tribunal's decision is a refusal to accept that the adverse effect of the ordinary practices of the Ambassadors was sufficient to make out a case of discrimination. The Tribunal required evidence of direct discrimination, or an operating stereotype. This evidence, according to the Tribunal, could only be provided through the testimony of victims.

Since homeless people are, by definition, a group of individuals without stable homes, means of communication, and supports, the expectation that is made of most complainants — that they be available to testify at a hearing months, perhaps years, after filing a complaint, is neither realistic nor fair.

So there is a problem here. Poor people will only gain protection from human rights laws if class complaints can challenge the systemic discrimination they face, without requiring them to be who they are not, or to live different lives. PIVOT Legal Society did what they should have. They made out a case that the ordinary practices of the Ambassadors had an adverse effect on a protected group. The Tribunal rejected the complaint because it felt uneasy without evidence of direct discrimination. This was an error.

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In 2011, the Supreme Court of Canada decided three human rights cases — Mowat, Figliola and P.S.A.C. These decisions elicit mixed reactions.

The Supreme Court of Canada ruled in Canada (Human Rights Comm.) and Mowat v. Canada (Attorney General), CHRR Doc. 11-3098, that the Canadian Human Rights Tribunal does not have the authority to award legal costs to a victorious complainant under the rubric of "expenses incurred". This was expected. The Canadian Human Rights Act does not envision that a remedy will include an award of legal costs because, until 2003, the Canadian Human Rights Commission represented complainants at hearings, and complainants did not incur private legal costs.

Things have changed, however. The Mowat decision reveals a crisis in the federal human rights system. The Commission does not represent complainants, and they cannot afford legal representation on their own. Complainants tried to get tribunal awards to cover their legal costs when they won, but the Court has said that the Act does not allow that. As long as no steps are taken to fill this vacuum, rights will be increasingly inaccessible. In 2012, we need a big push to re-establish access to the use of human rights in Canada, because rights that cannot be used are not rights at all.

Mowat is worrisome because of what it reveals about the state of access to justice, but the Court's reasoning is clear and persuasive. British Columbia (Workers’ Compensation Board) v. Figliola, CHRR Doc. 11-3097, is another matter. The Supreme Court of Canada, or at least the majority led by Abella J., seems to have an agenda: namely, to keep human rights tribunals out of the hair of other administrative tribunals. And it does not make a very persuasive case.

The issue in Figliola was whether the B.C. Human Rights Tribunal should have agreed to hear a complaint alleging that the chronic pain policy of the Workers Compensation Board ("WCB") was discriminatory. The policy set any award for chronic pain at 2.5 percent of a total award for disability. The WCB Review Division decided the policy was not discriminatory. However, the B.C. Human Rights Tribunal has discretion to hear a complaint if the substance was not appropriately dealt with in another proceeding. The SCC found that the Tribunal (CHRR Doc. 08-674) asked the wrong questions when deciding whether it should hear the complaint, but did not send it back to the Tribunal for reconsideration. It simply quashed the decision.

Perhaps the Tribunal asked the wrong questions. But from a human rights perspective the policy raises questions on its face. Is it permissible for the WCB to take a "meat-chart" approach to assessing compensation for a disability. Surely chronic pain, like other disabilities, has variations in severity and impact. The SCC certainly knows, after Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, that the treatment of chronic pain by workers' compensation boards is an issue of substance for injured workers. Human rights tribunals should be encouraged to take a "second look" when other administrative tribunals, grounded in different values and goals, have made a decision that negatively affects the human rights of many people, as this one does.

Finally, in a three paragraph decision that elicits a sigh of relief, the Supreme Court of Canada put an end to quibbling about pay equity for female Canada Post employees in P.S.A.C. v. Canada Post Corp., CHRR Doc. 11-3106. That means that in 2012 some female Canada Post employees will receive equalization payments that they have been waiting for since 1983.

In 2012, the first human rights case before the SCC will be British Columbia (Ministry of Education) v. Moore, a case of great importance for people with disabilities. The SCC will decide whether public schools are required to accommodate the needs of children with learning disabilities, if those children require something different than what is already on offer. This is a key case about inclusiveness and the responsibilities of public institutions. The Court has an opportunity to give human rights a real boost in the New Year.

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The Supreme Court of Canada ruled on October 28, 2011, that the Canadian Human Rights Tribunal cannot award legal costs to a successful complainant. The Act permits the Tribunal to award compensation for "expenses incurred" because of discrimination. But "expenses" does not include legal costs.

The Court ruled in the case of Donna Mowat (CHRR Doc. 11-3098, 2011 SCC 53), a former Master Corporal with the Canadian Forces. In 1998 she filed a complaint alleging sex discrimination and sexual harassment. Because the Canadian Human Rights Commission did not represent her, Mowat paid for her own legal counsel. She was successful on the sexual harassment claim, and the Tribunal awarded her $4,000 for injury to dignity, and $47,000 for legal costs (CHRR Doc. 06-757), which Mowat indicated was just a portion of her total legal costs of $196,000.

The Supreme Court of Canada ruled that the Tribunal has no authority to make such an award, because Parliament did not intend "expenses incurred" to include legal costs. The Tribunal itself, and some interveners at the Supreme Court level, argued that the Tribunal should be empowered to award legal costs, because without recovery of legal costs for complainants like Ms. Mowat, any victory would be "pyrrhic".

Legislative history shows that complainants are now arguing for legal costs to be included under the rubric of "expenses incurred" because successive federal governments have failed to amend the Canadian Human Rights Act in order to ensure that complainants are able to obtain adequate legal representation.

As the Supreme Court of Canada pointed out, the practice of the Canadian Human Rights Commission has changed since the Act came into force in 1979. There was no provision for legal costs when the Act was originally drafted because Parliament chose an active role for the Commission, which included litigating on behalf of complainants. When the Commission itself represented complainants, the fact that the Tribunal did not have a broad jurisdiction to award legal costs was irrelevant.

However, in 2003, the Commission changed its practice. The Court speculated that this may have been in response to the Report of the Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision, chaired by former Supreme Court Justice, Gérard La Forest. The Panel recommended that the Commission act only in cases that raised serious issues of systemic discrimination or new points of law. To ensure that this shift would not result in complainants being left without legal representation, the Panel also recommended that a legal clinic be set up to provide representation for them when the Commission did not act on their behalf.

The first of these recommendations the Commission acted on, as it could without any amendment to the law, or any assignment of new resources. The second was not acted on; it required a new structure and new resources, which neither Liberals nor Conservatives, as majority or minority governments, have provided.

The upshot is that since 2003 complainants like Donna Mowat have been alone. What choices do they have? They can represent themselves — a perilous prospect considering how complex many human rights cases are. Or they can hire a lawyer to represent them, knowing that they will not be able to recover the full cost even if they win. So the choices are: be a self-represented complainant and take a high risk of losing, or hire a lawyer and incur irrecoverable cost.

Now that the Supreme Court of Canada has ruled, it is clear that we are facing a crisis in the federal human rights system. A human rights system cannot abandon complainants in this way, and continue to be credible.

The answer is not to amend the Act to give the Tribunal a broad jurisdiction to award legal costs. This approach treats human rights complaints as disputes between private parties, where parties should pay their own costs, or obtain costs from each other when they are successful.

However, human rights claimants are not simply acting in their own interest. They are also serving the public, community interest in the elimination of discrimination from workplaces and services. Since human rights legislation is fundamental public policy, the public has an interest in ensuring that complainants have effective access to the exercise of their rights, and sometimes that means access to legal counsel.

It is time to act on the recommendation of the Canadian Human Rights Act Review Panel and create a human rights clinic so that those who make complaints under the Canadian Human Rights Act can receive the legal assistance they need. As the Panel wrote in its Report: "The practical result of no [legal] assistance [is] to deny access".

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The B.C. Supreme Court recently issued a decision in Friedmann v. MacGarvie (CHRR Doc. 11-3066) that begged for an appeal. Fortunately, there will be one. The Court sent a decision of the B.C. Human Rights Tribunal (66 C.H.R.R. D/146) back for reconsideration, but reconsideration in light of the ruling can only result in bad law.

The Court says that the Tribunal erred when it ruled that John Friedmann sexually harassed his tenant, Noemi MacGarvie, because it cannot, in law, make a finding of sexual harassment without also making a finding of sex discrimination.

In other words, the B.C. Supreme Court does not recognize sexual harassment as a form of sex discrimination per se. The B.C. Supreme Court relies on these words from the Supreme Court of Canada’s decision in Janzen v. Platy Enterprises Ltd. (10 C.H.R.R. D/6205): “The crucial fact is that it was only female employees who ran the risk of sexual harassment. No man would have been subjected to this treatment”. The B.C. Supreme Court seems to believe that in every instance a woman must show not just that she was sexually harassed, but also that men were not.

This decision is an astonishing throwback. Since 1989 when the Supreme Court of Canada decided both Brooks v. Canada Safeway Ltd. (10 C.H.R.R. D/6183) and Janzen, it has been recognized that both discrimination because of pregnancy and sexual harassment are forms of discrimination experienced solely or overwhelmingly by women. While there can be sexual harassment against men, it is rare. Sexual harassment is caused by, and reinforces, women’s inequality with men. It is also widely accepted now that sexualized commentary and touching do not belong in work environments or in relationships as crucial to every day living as that between landlord and tenant, because they alter and poison these relationships.

In this case, the sexual harassment was both blatant and frightening. Mr. Friedmann asked Ms. MacGarvie questions about her boyfriends, her sex life, and her bedroom. He made excuses to come to her apartment and sometimes came early in the morning when she was in her pajamas. On one occasion he put his hand
on her buttocks. He was aggressive and argumentative. On another occasion he pushed his way into her apartment, ostensibly to do some repairs, and Ms. MacGarvie called the police. She was  a young, single woman living alone, and she became afraid to be alone in her apartment, and afraid to leave it.

This is clearly a form of conduct that “no man would have been subjected to”. It is not necessary to prove this by bringing forth evidence that Mr. Friedmann did not sexually harass his male tenants; it is patently obvious here, as it was in Janzen, that this was sexualized conduct directed at a woman because of her gender.

Further, if women are required to bring forward comparative evidence, what happens to the women who have no male counterparts, because they are the sole woman employee, or because all the workers are female except for the supervisor? Can there be no sexual harassment in such circumstances?

The B.C. Supreme Court has taken formal equality to an absurd length. Let us hope that the B.C. Court of Appeal can turn this around.

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CHRR decisions are only available from Canadian Human Rights Reporter Inc.

CHRR decisions are not included in LawSource (Westlaw), Quicklaw (LexisNexis) or CanLII.