View Point

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

In an unexpected decision, the Canadian Human Rights Tribunal ruled, in Warman v. Lemire (No. 18) (68 C.H.R.R. D/205) that s. 13 of the Canadian Human Rights Act violates the right to freedom of expression in the Canadian Charter of Rights and Freedoms. Section 13 prohibits communicating messages, via telephone or internet, that will expose individuals or groups to hatred or contempt because of race, religion or other protected characteristics. Although the Supreme Court of Canada ruled in 1990 in Canada (Human Rights Comm.) v. Taylor (13 C.H.R.R. D/435) that s. 13 was a reasonable limit on the right to freedom of expression, the Tribunal decided that the nature of s. 13 has changed, and its constitutionality should be revisited.

Prior to 1998, if s. 13 was breached, a Tribunal could only issue a cease and desist order. The 1998 amendments did not change s. 13, but added ss. 54 and 54.1(1) which permit a Tribunal to award special damages to an individual who is recklessly harmed, or to levy a fine up to $10,000.

The Tribunal found that the introduction of the fine changed s. 13 from a “conciliatory, preventative, and remedial” provision, as the Court saw it in 1990, into a punitive provision, which has created a “potential ‘chill’ upon free expression”. The Tribunal ruled that s. 13, with the new penalty provisions attached, is no longer a minimal impairment of the right to freedom of speech.

In its history since 1977, s. 13 has been used mainly against prominent white supremacists who have made careers of promoting hatred against Jews, and persons who are not white — John Ross Taylor, Ernst Zündel and others. Most people would agree with the Taylor Court that s. 13 has important work to do in a society committed to egalitarian values, and that it has done that work cautiously. “Exposing to hatred or contempt” has been defined so that it constrains only the most virulent expression. And not even the post-1998 penalty provisions have very sharp teeth. In the twelve cases in which penalties have been awarded since 2001, the penalties ranged from $1,000 to $8,000.

It is difficult to see that penalties of this magnitude turn s. 13 into an egregious assault on freedom of expression. Without the penalty provisions, the only remedy attached to s. 13 will be a cease and desist order — never a very effective remedy against those who are determined purveyors of racial and religious hatred. 

The complaints about Mark Steyn’s MacLean’s magazine article about the “rising influence of Islam” broke the pattern of complaints being filed almost solely against Canada’s white supremacists. The Steyn complaints unleashed a media hysteria, and in its swirl Canada’s modest and carefully enforced anti-hate provisions have been transmogrified into giant threats to freedom of speech.

But the complaints against Mark Steyn’s article were thrown out because the Canadian and Ontario Human Rights Commissions and the B.C. Human Rights Tribunal (Elmasry v. Rogers Publishing Ltd. (No. 4), 64 C.H.R.R. D/509) found that the article did not expose a group to hatred. Surely, we should conclude from this that the system works and refrain from dismantling it. Given the record of the interpretation and application of anti-hate provisions in human rights legislation, it is hard to find the recent outcry against either s. 13, or the penalty provisions, persuasive.

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The Walden case has a startling outcome (67 C.H.R.R. D/275). Although the Canadian Human Rights Tribunal ruled in 2007 (64 C.H.R.R. D/215) that the 431 nurses who worked as “medical adjudicators” for the Canada Pension Plan Disability Benefits Program had been paid less than doctors, called “medical advisors”, who performed substantially the same work, the women got no award for wage loss.  In its recent decision on remedy, the Tribunal decided that the complainants had not provided reliable evidence of the existence or extent of the wage gap, and it declined to make any award.

The employer in this case is the federal government, which employs almost 400,000 people across the country, more than half of them women. Its employment practices matter. In 2007 the Tribunal found that the federal government had refused, since March 1978, to “recognize the professional nature of the work performed by the medical adjudicators in a manner proportionate to the professional recognition accorded to the work of the medical advisors”. This was a discriminatory practice within the meaning of both ss. 7 and 10. “The effects of the practice”, the Tribunal said, “have been to deprive the adjudicators of professional recognition and remuneration commensurate with their qualifications, and to deprive them of payment of their licensing fees, as well as training and career advancement opportunities on the same basis as the advisors”.

But at the hearing on remedy, the Tribunal accepted the employer’s proposal for a new job classification for the medical adjudicators, but did not accept the complainants’ expert report estimating the wage loss. The complainants’ expert estimated that the wage gap between the advisors and the adjudicators that was due to sex discrimination was 25 – 35 percent. The expert said that he would have liked more time and more information for his study, and agreed that his findings involved some speculation. The Tribunal concluded that the results of his study were not reasonably accurate.

Admittedly, establishing the amount of a wage loss can be a complex exercise.  But some speculation is always involved. Sometimes the speculation is about how much work would have been available from the respondent employer, and whether a particular complainant would have been in a position to do it. In this case, some estimating was also required, about how much of the wage difference was due to different duties and how much to sex discrimination.

An interim decision by the Tribunal that further analysis was required to make a reasonable estimate would have been understandable. But to award nothing to the 431 women in this case is a different matter. If there is no remedy for the violation of the right to equal pay, the right itself loses meaning. The Commission asked the Tribunal to retain jurisdiction, if it did not accept the complainants’ expert report, and direct the employers to undertake a job evaluation study. But the Tribunal refused to do so. Although the employers have discriminated against the women adjudicators since 1978, the Tribunal ruled that the employers were entitled to closure. Apparently, the women were not.

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Human rights commissions, and human rights themselves, are under attack from mainstream media and conservative commentators. Jennifer Lynch, Chief Commissioner of the Canadian Human Rights Commission, recently urged members of the human rights community to defend the human rights of vulnerable people and to ensure that discussion about human rights commissions is informed and respectful (Conference of the Canadian Association of Statutory Human Rights Agencies, June 15, 2009).

To respond to these attacks, it is important to consider their ideological underpinnings. A typical example is an op ed piece by Tom Flanagan, published by The Globe and Mail recently (Tuesday, May 19, 2009, p. A13). Mr. Flanagan’s treasured point is that governments (here in the form of human rights institutions and human rights law) should not interfere in the market or social relations. Tom Flanagan, and others, hold an Americanized view that government intervention to correct discrimination is, by definition, abusive.

Flanagan says that the very existence of human rights commissions is an abuse.  They enforce anti-discrimination laws, not real rights like freedom of speech and worship, and ownership of property. The market should be allowed to take care of discrimination without government interference, says Flanagan. Although competitive markets may not immediately abolish discriminatory practices, they tend to erode them over time by making discrimination unprofitable.

For the proposition that the market will – over time – take care of discrimination on its own, no evidence is offered. The evidence indicates the opposite. The market likes discrimination, as it searches perpetually for a cheaper pool of labour. Workers who are more vulnerable, because of sex or race or country of origin, work for less money, in worse conditions.  For example, the Latin American workers who came to Vancouver on temporary visas to build the tunnel for the new Canada Line were paid less than European workers, also on temporary visas. The employer claimed that this was due to its “international pay practices”. A human rights tribunal (C.S.W.U., Local 1611 v. SELI Canada Inc. (No. 8), CHRR Doc. 08-935) concluded that “international pay practices” simply meant that SELI Inc. had found that it could pay workers from countries with low wage rates less money than workers from countries with high wage rates, even when they work in Canada. According to Mr. Flanagan, it is an abuse for a human rights tribunal to interfere in this discrimination.

Tom Flanagan’s article illustrates that at the centre of the equality project is a struggle between contending views of the role of government: governments should be a redistributive, egalitarian force, intervening in the market and in social relations to correct discrimination vs. governments should be “hands off”, permitting the market and social relations to control the distribution of benefits in our society.

If, as members of the human rights community, we are going to defend commissions and human rights, we should be prepared to address this central issue. For Tom Flanagan, restraining government is the only human rights task. But human rights commissions and human rights laws rest on the understanding that equality requires governments to use both the force of law and public resources to eliminate discrimination.

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As more human rights cases challenge government benefit schemes, more decisions revolve around determinations of what the service is and who is the “public” to whom it is provided.

Two recent B.C. cases illustrate the centrality and contentiousness of these issues. Governments are making every effort to ensure that the parameters of services remain as they have defined them, undisturbed by claims of discrimination. A standard argument now is that the service in question is one that is simply not provided to those who claim to be discriminated against, as though that is a full answer.

One case, recently decided by the B.C. Human Rights Tribunal (J. and J. on behalf of R. (No. 2), 66 C.H.R.R. D/341), is about children with developmental disabilities. A 15-year-old boy was refused the services of a youth worker to help him improve his social skills on the grounds that his IQ was above 70, rather than below 70. The argument of the government agency, Community Living British Columbia (“CLBC”), was that the boy was not a member of the public it serves. The agency decided to set the parameters for its service by using the definition of “mental retardation” from the Diagnostic and Statistics Manual of Mental Disorders of the American Psychiatric Association, which states that one of the criteria of “mental retardation” is an IQ of 70 or less.

The Tribunal in this case went to the heart of the issue. It said:

to allow this position to be determinative of the question of whether R was a member of the public to whom CLBC customarily provides services would be essentially circular, as it would mean that CLBC by employing a set of eligibility criteria which have the effect of excluding R from services, is able to thereby define the public to whom it customarily provides services, and immunize the application of those eligibility criteria to R from human rights review.

While the Tribunal rejected this defeating circularity, the B.C. Supreme Court embraced it in McGrath (66 C.H.R.R. D/376), a case about grandmothers who have assumed legal custody of their grandchildren because the parents are incapable of caring for them. As grandmothers, they receive $271 per month for the care of a “child in the residence of a relative”, while as foster parents they would receive about $800 per month for the care of the same child. The B.C. Supreme Court found that the Tribunal erred by not dismissing the grandmothers’ complaints. The Court said they “sought something not contemplated by the legislative scheme”. As custodial parents, they were not a part of the “public”served by the Child, Family and Community Services Act, and could not compare themselves to foster parents.

The Tribunal apparently erred in finding that it could consider what the true nature of the service being provided was, and scrutinize the legislated parameters of the service for compliance with the Code. But surely the Tribunal’s more purposive analysis was warranted. Human rights guarantees are intended to foster scrutiny of where the boundaries for any particular benefit have been set. When government arguments are circular, and defeating to the purpose of human rights guarantees, they should not be endorsed.

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Meiorin (35 C.H.R.R. D/257) and Grismer (36 C.H.R.R. D/129) made it more difficult for respondents to demonstrate that they have discharged the duty to accommodate to the point of undue hardship. Perhaps because of this, respondents are putting new pressure on the steps in the discrimination analysis that precede the undue hardship analysis. Adjudicators and courts are being pushed to analyze meticulously whether a prima facie case of discrimination has been established before complainants can get to the undue hardship stage.

In a decision from the Alberta Court of Queen’s Bench (65 C.H.R.R. D/392), the Court upheld a ruling of the Human Right Panel (CHRR Doc. 07-385) dismissing a complaint in which Robert Baum alleged that the City of Calgary failed to accommodate his disability, on the grounds that Mr. Baum did not establish a prima facie case of discrimination.

Mr. Baum was a millwright and he worked for the City of Calgary for more than 20 years. In 2001, he was disabled by osteoarthritis to the point where he could not perform his millwright duties. Mr. Baum complained that when it was clear that he needed an alternative job, a proper assessment of his capacities was delayed, he was offered inappropriate positions, and, in general, the search for accommodation was slow and ineffective. In 2006, he found an alternative job outside the City and resigned.

Relying on the minority concurring decision of the Supreme Court of Canada in McGill University Health Centre (59 C.H.R.R. D/259), the Alberta Court said that Mr. Baum had not made out a prima facie case of discrimination because he had not demonstrated that the employer’s conduct was based on “stereotypical or arbitrary assumptions about persons with disabilities”.

Because, in the failed search for an alternative position for Mr. Baum, there was no stereotype operating, the Court said that there was no discrimination. Following this logic seems to mean that any search for accommodation, no matter how lackadaisical and protracted, does not contravene human rights law, unless overt stereotypes are operating in reviewing which jobs would be appropriate.

This looks like an inappropriate insertion of the requirement to find a stereotype into the duty to accommodate analysis. Most disability employment cases are grounded in a stereotype of the “normal worker”, who is able-bodied and the preferred candidate for every job. Mr. Baum fell afoul of this stereotype at the point when his disabilities became severe enough that he could no longer work as a millwright. He was adversely affected by the “normal” requirements of his job, which he could not meet because of his disability, and he stood to lose his employment unless he could be accommodated in an alternative position. This should have gotten him through the prima facie discrimination stage.

The appropriate question was: did the employer accommodate Mr. Baum to the point of undue hardship? The answer to that question appears to have been no. The City had not found him an appropriate alternative job, nor had it even claimed that it could not do so because of undue hardship. Requiring a search for stereotypes was inappropriate here.

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The B.C. Human Rights Tribunal in C.S.W.U., Local 1611 v. SELI Canada Inc. (No. 8) (65 C.H.R.R. D/277) has delivered an important ruling on the discriminatory treatment of migrant workers from Latin America. In a globalized economy, this decision seems to be a marker, revealing important truths about real conditions in the current world of work in Canada, and pointing to more problems in the future. Migrant workers, and their treatment, may become an increasingly important topic for human rights adjudication.

SELI Canada did the tunneling work for the Canada Line, which is a new rapid transit rail line that will link downtown Vancouver with the Vancouver International Airport. SELI paid workers from Costa Rica and Ecuador less than it paid European workers, even though they were performing the same work. It also housed the Latin American workers in a motel, not in apartments like the European workers, and gave them meal tickets rather than a meal allowance. Giving the Latin American workers meal tickets meant that for about two years they ate all their meals in the same two restaurants.

SELI defended the pay difference and different treatment on the grounds that it had “international compensation practices” designed specially for its mobile and globalized workforce. Workers moved between countries to work on SELI projects. However, their pay rates were, to a large extent, determined by the wage rates in the country where they first worked for SELI. The Tribunal found that SELI’s international compensation practices were simply a way of keeping the pay of Latin American workers low. The practices perpetuated discrimination against the Latin American workers, by continuing to pay them at a lower rate, even when they were working in Canada, and working alongside European workers who were performing the same work but receiving almost twice as much.

The complaint reveals two central issues. First, migrant workers need union protection. This complaint would never have seen daylight if it had not been filed and advocated for by the Construction and Specialized Workers Union, Local 1611. The workers are subjected to various forms of intimidation. If bringing a complaint forward relied on individual migrant workers being able to do it, it just would not happen.

The migrant workers need union protection, but the case also demonstrates that, for a union to obtain certification for vulnerable workers, who will be in the country for a short time, is also difficult.

Perhaps most important, governments seem to be absent from this story, even though the migrant workers are being paid with public money. The Canada Line is an infrastructure project, funded by the governments of Canada, British Columbia and Vancouver. These three levels of government are not parties to the complaint, having contracted out the work. And apparently it was contracted out with no requirements that ensured that migrant workers would not be discriminated against. The three governments could have prevented this complaint, but did not do so. If they were employing these workers directly, they would be on the hook for the discrimination. They seem to have devised a way to contract out of human rights obligations.

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