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.
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".
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.
The Supreme Court of Canada has agreed to hear an appeal in British Columbia (Ministry of Education) v. Moore (CHRR Doc. 10-3530). This case is of key importance for people with disabilities in Canada, and may help to redefine government obligations to design inclusive services.
Jeffrey Moore was in kindergarten in North Vancouver when he was diagnosed with severe dyslexia. The dyslexia interfered with his ability to learn to read, and at the end of Grade 3, because Jeffrey was not receiving the assistance he needed, his parents sent him to private school where special help for children with severe learning disabilities was available. Jeffrey’s parents complained that he was discriminated against in the public school system because his dyslexia was not adequately accommodated.
At the heart of the Moore case is a dispute over whether people with disabilities can claim that the failure to provide an additional service, which they need in order to benefit from the general public service that is offered, constitutes discrimination. Government service-providers, like the British Columbia Ministry of Education, argue strenuously that human rights complaints can only be successful if there is discrimination within the service that is already being provided. If a service is not already offered, there can be no discrimination. Their position is that the intensive remediation that Jeffrey needed was not provided by the School District at the time, and consequently there was no discrimination.
The majority of the B.C. Court of Appeal agreed with the Ministry that Jeffrey could not claim that he was denied access to a general education, including the opportunity to learn to read. Jeffrey was provided with special education services, even thoughthey did not include the intensive remediation that he needed in order to become literate. Since Jeffrey was provided with the same special education services as other children with learning disabilities, there was no discrimination.
This seems to mean that governments can provide whatever accommodation for people with disabilities they decide on. If that accommodation is inadequate, or does not work to make the general service accessible, that cannot be challenged. People with disabilities cannot compare themselves to people without disabilities to demonstrate that they are not receiving the equal benefit of the service.
This legal analysis relieves governments of any obligation to alter the substance of the services they provide to the public in order to make a more inclusive, better functioning society for those with disabilities.
Importantly, this argument also directly contradicts the commitments made when Canada ratified the Convention on the Rights of Persons with Disabilities in March 2010. The Convention obligates Canada to promote “full and effective participation and inclusion in society” for persons with disabilities, and to ensure that they “receive the support required, within the general education system, to facilitate their effective education”.
What the Supreme Court of Canada decides in Moore may well shape the relationship between governments, in their role as service-providers, and people with disabilities for years to come.
In her 2011 June Status Report, the Auditor General of Canada, Sheila Fraser, reported that there is no progress towards improving conditions on First Nations reserves in Canada. The report shows that despite 10 years of Auditor General’s recommendations “services available on reserves are often not comparable to those provided off reserves by provinces and municipalities. Conditions on reserves have remained poor". Ms. Fraser concluded that “change is needed if First Nations are to experience more meaningful outcomes from the services they receive.”
Just about a week later, on June 18, the protections of the Canadian Human Rights Act finally became available to First Nations and other Aboriginal people, giving them the same human rights protections as everyone else in Canada. Since 1977, s. 67 of the Canadian Human Rights Act barred human rights complaints from being filed against either the federal government or Band Councils when they were acting under the Indian Act. While this bar was intended to be temporary, it lasted until 2008, and even when it was finally removed by legislation, because of a three-year transition period, the Act did not fully apply until a week ago.
The question is: will human rights protections help First Nations people to prod the federal government into action? As the Auditor General points out, there is no improvement, indeed conditions may be worse. Real, sustained, and effective measures are needed to address the shamefully poor level and quality of basic services that First Nations people receive on reserves.
David Langtry, Acting Chief Commissioner of the Canadian Human Rights Commission, writing in The Globe and Mail, argues that the Canadian Human Rights Act can and should be pivotal in changing the “chronic disparities in funding for health, education and social services for more than 700,000 First Nations”. These chronic disparities — the same ones noted by the Auditor General — are, he says the product of “entrenched discriminatory policies". Human rights legislation should be a motivator for the Government of Canada. Having bound itself by law not to discriminate against First Nations people on reserve, specifically with respect to the provision of services, the Government should be, finally, swinging into action.
Instead, we are forced to witness government hypocrisy. On the one hand, in a news release the government called the legislation which repealed s. 67 "another step by this Government to empower First Nations individuals and…a significant step to improving their lives". On the other hand, the Government fights like a mad dog when a complaint is filed alleging that the government discriminates in the funding it provides for child welfare services for First Nations people. (First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) (No. 2) (2011), CHRR Doc. 11-3017, 2011 CHRT 4).
Far from being motivated to act by its own human rights law, the Government is signalling that any victories that come from it will have to be fought for by First Nations people, every step of the way. The Government likes the sentiment of the Act apparently, but resents its use.
At least, it is encouraging to see that First Nations people have the Canadian Human Rights Commission on their side, ready to advocate for them, and apparently ready to take up the legal cudgels, when necessary.
“The mirthless sitting in adjudication over the mirth-makers.”
This is Rex Murphy’s characterization, in a Globe and Mail column, of Lorna Pardy’s complaint that she was discriminated against by Guy Earle during an 'open mic' "comedy" show in Vancouver. Murphy understands this complaint as further evidence of Canada’s "human rights insanity".
It’s true that reading the Tribunal’s decision on the Pardy case (CHRR Doc. 11-0101) does render one mirthless. It is difficult to imagine laughing in response to comments like: "Do you have a strap-on? You can take your girlfriend home and fuck her in the ass". Or: "Are you on the rag; is that why you're being such a fucking cunt?" Who laughs when they are called: "stupid fucking dyke cunts?" If these comments are funny, then it’s probably true that human rights laws, and the adjudicators of them, lack humour.
A number of the people who were witnesses did not seem to find Mr. Earle’s comments funny either. They testified before the Tribunal that some people who were in the restaurant that night got up and left, and others, including some performers, went over to Ms. Pardy’s table and apologized to her for Earle’s conduct.
Earle claimed in his defence that "it was his job as host to engage anyone he judged as potentially disruptive, and quiet them". But, as the Tribunal pointed out there were measures well short of repeated, demeaning insults that could have been used to maintain order, if that had been the issue.
The Tribunal did not find that maintaining order was the issue. Although the complaint has been referred to as “the case of the heckled comic”, the evidence was that Mr. Earle started the comments about Ms. Pardy and her companions; she did not provoke or invite them.
She did respond. When he came down off the stage and angrily approached the table where she and her friends were sitting, Ms. Pardy told him "not to come near them" and threw a glass of water in his face. This happened twice. The Tribunal does not excuse this, but does not find that Ms. Pardy’s responses justify the facts of Earle’s conduct.
He made two sets of comments from the stage directed at Ms. Pardy and her friends, which insulted and denigrated them because of their sex and sexual orientation. He then cornered Ms. Pardy off stage, physically intimidated and verbally abused her, referring to her as a "fucking stupid dyke", grabbed and broke her sunglasses, and threw them on the floor.
Guy Earle says he will appeal the Tribunal’s ruling that his conduct was discriminatory. If he does, it will be interesting to see how the case fares in court. A lot of people will feel that even though comics need some latitude, Earle crossed a line, one that is worth holding. In this case, Earle’s sexist and homophobic insults were not funny, and not justified as a means of keeping order. They created an atmosphere of discrimination and intimidation for women in a neighbourhood restaurant where they expected to be treated with respect.
The Canadian Human Rights Tribunal’s decision (First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) (No. 3), CHRR Doc. 11-3017) to dismiss the complaint of the First Nations Child and Family Caring Society ("FNCFCS") without a full hearing is an alarming one. It is common knowledge that child welfare services on reserves are deficient, and programs that reduce the risk of removal of children from their families are lacking. The Caring Society and the Assembly of First Nations say that funding provided by Indian and Northern Affairs Canada (“INAC”) is patently inadequate. They compare INAC’s funding for child welfare to the funding provinces provide to children living off reserve.
Shirish Chotalia determined that this complaint failed at the preliminary stage on the comparator issue. She found that in order to show “adverse differentiation” the Canadian Human Rights Act requires a comparison be made. But, Ms. Chotalia ruled, the Act does not allow a comparison between two different service providers with two different recipient groups. Federal funding goes to on-reserve First Nations children. Provincial funding goes to children who live off-reserve. These two cannot be compared. On this ground, she dismissed the complaint without a hearing.
Ms. Chotalia’s decision certainly reflects the usual way that comparisons have been made in human rights cases. Typically, the comparison is between different levels of service provided to different groups by the same service provider.
However, now that s. 67 of the Canadian Human Rights Act has been repealed and on-reserve First Nations people can finally make complaints against the federal government, some new thinking is required. It is necessary to recognize that Indians living on reserve are in a unique, and uniquely disadvantaged, position. In complaints against the federal government, what comparisons can they make?
In its recent decision in Withler v. Canada (Attorney General), 2011 SCC 12, the Supreme Court of Canada recognized that sometimes comparator group analysis can sink a case for the wrong reasons. The SCC reiterated that the focus of an equality inquiry is the actual impact of a law to determine whether it perpetuates disadvantage. If this reasoning applies here, the comparison with provincial funding was pertinent, as it clearly demonstrated that there is a standard for child welfare services set by other governments that the federal government falls below. As such, the comparison was a way of exposing inequity, of showing that on-reserve children carry a burden that others do not.
Most importantly, however, Ms. Chotalia’s approach puts First Nations people who live on reserve in an impossible position. Because of the history of colonization, they have a unique and exclusive relationship with the federal government. By denying that any comparison is possible between levels of service provided by the federal government to those living on reserve and by provincial governments to other Canadians, the Tribunal grants a kind of immunity to the federal government with respect to its treatment of First Nations people. Ms. Chotalia’s ruling seems to mean that on-reserve First Nations people can receive poorer services than other Canadians, but this cannot be challenged as discriminatory. It has broad implications for the fairness and adequacy of on-reserve policing, health, and education.
The complainants and the Canadian Human Rights Commission have announced that they will appeal this decision. Hopefully, some brave, new thinking will emerge.
In Reference Re The Marriage Act, 1995 (Sask.), CHRR Doc. 11-3000, the Saskatchewan Court of Appeal ruled that, if it were amended to permit marriage commissioners to refuse to perform same-sex marriages for religious reasons, the Marriage Act would be unconstitutional. The Government of Saskatchewan asked the Court’s opinion on proposed amendments in the wake of a successful human rights complaint (67 C.H.R.R. D/339) against marriage commissioner Orville Nichols, who refused to perform a marriage between two men, and a constitutional challenge commenced by Orville Nichols and other marriage commissioners alleging that the Government’s requirement that they solemnize same-sex marriages is a breach of their right to freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms.
The Court of Appeal issued two concurring judgments. Both found that the proposed amendments would violate the s. 15 equality rights of gay men and lesbians and could not be justified under s. 1 of the Charter. But there is an interesting difference in reasoning between the majority and minority judges.
The majority says that the objective of the amendments is to accommodate the religious beliefs of marriage commissioners. It finds that this is a “pressing and substantial objective” as required by the first step of the Oakes test. The majority goes on to rule that the amendments would not minimally impair the rights of gay men and lesbians, nor would the benefits to the commissioners outweigh the harmful effects, and so the amendments cannot be justified under s. 1.
Taking a different approach, the minority writes that in Charter cases that turn on a s. 1 justification, examination of whether the objective of the legislation is “pressing and substantial” has become truncated. So long as the legislation in question reflects some legitimate governmental concern, courts have been content to pass on to the next questions.
But the minority judges want to scrutinize the objective. They say that the objective of the proposed legislation is not to accommodate marriage commissioners but, more specifically, to permit them to refuse to perform same-sex marriage ceremonies for religious reasons. They question the validity of that goal.
Marriage commissioners are appointed to perform non-religious marriages; the requirement to do so does not limit or restrict their religious beliefs. They are not required to engage in the action that they consider sinful (same-sex marriage). They object that it is sinful for others to engage in such activity. The interference with the religious beliefs of marriage commissioners may be considered trivial, because their actual religious beliefs and conduct are not directly threatened.
The minority also asks why it is important to protect the right of marriage commissioners to refuse to perform civil same-sex marriage because they do not, on religious grounds, approve of them. The same argument could be invoked by anyone running a restaurant or offering an apartment for rent. No one else is permitted by law to refuse to provide a public service to same-sex couples because they do not approve of their relationship on religious grounds.
The right to act on religious beliefs is limited when it infringes on the rights of others. In the view of the minority judges, the legislative objective of the Government’s proposed amendments is not of sufficient importance to justify infringing the rights of gay men and lesbians.
Every jurisdiction in Canada has human rights tribunals, with accessible informal hearing procedures, to adjudicate discrimination complaints at first instance. This is in keeping with the informal adjudicatory justice systems in place across Canada for all sorts of protective regulatory statutes. A few months ago the Supreme Court of Canada in R. v. Conway, 2010 SCC 22 expressed confidence in all such adjudicatory bodies by giving them full jurisdiction under the Charter of Rights unless their governing statutes explicitly said otherwise. Quebec experimented with and then abandoned the notion that the courts were a more appropriate forum for human rights inquiries. In the name of access to justice, some jurisdictions have allowed direct access to human rights tribunals; eliminating the "gate keeper" function of the human rights commission in determining which complaints “merit” a hearing. However, Saskatchewan is not attuned to any aspect of this state of administrative affairs; a different and distant drummer appeals to its ear. On November 29, 2010, Justice Minister Don Morgan introduced Bill 160.
Bill 160 scraps the Human Rights Tribunal along with its informal rules of evidence in favour of the Court of Queen’s Bench governed by The Queen’s Bench Rules of Court. To be clear, lawyers, and no one else get to play in this court and under these voluminous rules. Bill 160 leaves a little bit of discretionary space for a party to appear before the court “with the assistance of a third party other than counsel … if the court considers it appropriate in the circumstances and subject to any conditions that the court considers necessary”. Just how much more accessible this discretionary exception may make the high court remains to be seen. Hearings will be held only at judicial centres; whereas the human rights tribunals travelled to where the complaint arose; however remote the location. And, not only is the gate-keeping function retained, two extra new grounds for dismissal of a complaint are given to the Chief Commissioner of the Saskatchewan Human Rights Commission. And, for good measure, such a dismissal decision is to be absolutely final; unlike the status quo where a dismissal decision is subject to review by the Human Rights Tribunal.
Bill 160 invites an ironic reading as it also makes consequential amendments to The Labour Standards Act which do march to the common Canadian drummer of establishing informal administrative adjudicatory mechanisms for the hearing of complaints under regulatory legislation. This begs the question why the different and distant drummer for human rights complaints? A report entitled Workplace Dispute Resolution Project, published November 2, 2010, by the British Columbia Law Institute, notes — in response to the notion that the B.C. human rights tribunal ought to be scrapped in favour of an omnibus workplace tribunal — that such a drastic step ought to be undertaken only after the publication of a study paper and a full consultation process. By the way, none of the last five full external reviews of human rights processes in Canada have seen any merit in abandoning human rights tribunal systems in favour of high courts!
Is adverse effects being shunted aside in the analysis of discrimination? A recent judgment from the Ontario Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne (CHRR Doc. 10-3523) arouses this concern.
The Court ruled that the Ontario Disability Support Program (“ODSP”) violated the Code because it denied benefits to people whose sole disability was alcoholism or drug addiction. This is a positive outcome, but there are troubling aspects of the Court’s discussion of the test for a prima facie case.
There are new pressures to reformulate what is required to prove discrimination. First, because it has become more difficult to show that the duty to accommodate has been met, those defending themselves against complaints are making new challenges to the steps in the discrimination analysis that precede the duty to accommodate stage. Second, there is a need to find some consistency between tests for discrimination under s. 15 of the Charter under human rights legislation, particularly when a program or benefit is at issue that could be challenged under either one.
The center of the concern seems to be ensuring that before one gets to statutory defences or to s. 1 of the Charter, a complainant has been required to show not just a distinction on a prohibited ground but a substantive harm that is related to the ground. It is hard to take exception to this. But adjudicators and courts keep wrestling with what is required to establish the substantive harm.
In McGill University Health Centre (59 C.H.R.R. D/259), Justice Abella wrote that at the heart of the definition of discrimination is an understanding that a workplace practice or requirement must not disadvantage an individual “by attributing stereotypical or arbitrary characteristics”. This fostered subsequent claims that there is now a separate requirement in human rights law to show that adverse treatment was based on arbitrariness or stereotypical presumptions. The B.C. Court of Appeal in Armstrong (67 C.H.R.R. D/332) rejected this claim.
But in Tranchemontagne the Ontario C.A. says: “the prima facie case test involves ... demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping”.
The problem is that fixing on stereotyping or prejudice takes us backwards, back to motivation and intention. One may argue that stereotypes of some kind are always present in discrimination cases. That may be so, but they are often so deeply buried in the structure of workplaces or services as to be indiscernible. Was Via Rail’s purchase of new train coaches that were not fully accessible based on a stereotype of train travelers as able-bodied (59 C.H.R.R. D/276)? Was Simpsons- Sears’ requirement that employees work Friday evenings and Saturdays based on a stereotype of religious observance as always occurring on Sundays ("O'Malley", 7 C.H.R.R. D/3102)? Maybe, but certainly Via Rail and Simpsons-Sears thought that they were making decisions based on objective criteria about expense and scheduling needs.
It is crucial not to push aside the wisdom of 25 years of human rights doctrine. In O’Malley the Supreme Court said that a rule, neutral on its face and honestly made, can have discriminatory effects. It is the result or the effect of an act that is important in determining whether discrimination has occurred. Nothing has altered the fundamentality of this principle.