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. Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse)

In Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse) (SCC, 2021) the Supreme Court of Canada faced an interesting conflict between the dual quasi-constitutional 'rights and freedoms' of expression and equality (ie. non-discrimination). The case was brought to the Quebec equivalent to a human rights Commission (Commission des droits de la personne et des droits de la jeunesse) under the provincial Charter of Human Rights and Freedoms, but the court openly acknowledged that Charter law dealt with the same issues and that they should strive to establish consistent law in these important areas.

The case involved a physically disabled child entertainer being ridiculed for features of his physical disability by a comedian. One joke even focussed on the possibility of his being drowned.

While the case drew significant media attention for it's compelling facts, much of it turned on the structure of the Quebec human rights and freedoms statute. The Supreme Court took the oppourtunity to re-direct a line of Quebec cases that both effectively dispensed with any causation of 'damage' requirement [I use the term 'damage', but more accurately in the context the harm is "social effects of discrimination, such as the perpetuation of prejudice or disadvantage": para 28], and with a requirement that the two rights be 'balanced' against each other. It then proceeded to do both of those things - ie. consider damage and balancing.

On damages, the case relied heavily on a previous Saskatchewan Charter case, Saskatchewan (Human Rights Commission) v. Whatcott (SCC, 2013) which - with similar expression-discrimination 'balancing' task (here, pamphlets vilifying gays) - struck down portions of the Saskatchewan human rights statute that prohibited expression that "ridicules, belittles or otherwise affronts the dignity" of the complainant. However the court sustained that portion that dealt with "hatred" - albeit on a narrow reading. The strike-down aspect was basically justified on the general 'tolerance' accorded expression in our legal system, and "hatred" was read-down to “the most extreme type of expression that has the potential to incite or inspire discriminatory treatment against protected groups on the basis of a prohibited ground” (Whatcott, para. 48).

The court obviously viewed the impugned expression in Ward as properly categorized as 'ridicule', and thus - consistent with the result in Whatcott - would not locate this expression as 'hatred', which would have made it legally discriminatory. The court also drew the distinction between individual targeting (the facts here) and collective targeting (presumably all disabled person), as further justification for ruling against the complainant. Throughout the case, the court lamented the fact that the litigation had not been commenced as a defamation action - obviously preferring that remedy.

In the result, it seems obvious that the court is recommending in future a defamation remedy for such non-hatred, individual-directed expression - throwing the law into the legal mess that we have been left with after Bhadauria (no lawsuits for discrimination) by forcing people to further and further hair-splitting. Disabled people who are insulted, even if the insult is directly-based on their disability, will have to accurately predict each court's predilection on this jurisdiction issue. As though physically disabled people didn't have enough problems coping with an overwhelmingly able-bodied-favouring world.

In my view the weakest aspect of the tribunal's ruling below is that the comedian "had made comments concerning Mr. Gabriel’s disability, although he had not chosen Mr. Gabriel because of his disability" as though this were somehow excusing of the magnitude of the ridicule [para 16]. It was plain - and the Supreme Court seems to agree with me [para 91] - that the comedian overtly sought out and integrated into his routine issues that would challenge levels of social tolerance, and it is difficult to believe that he was ignorant of the effect of his choice of targets as he planned this 'untouchables' routine. However the court tolerated this tribunal finding out of a disengenuous appellate deference.

I suppose my main objection to the result in this case should have been expressed when Whatcott came down in 2013, as both gays (Whatcott) and disabled people (Ward) (the latter of which I count myself) are - like most typical human-rights code protected categories - similar in that they don't 'chose to be that way', and in that sense are equally 'innocent' and deserving of protection. That would have been the time to argue against the 'hatred'-only prohibition of expression against those on the human-rights protected list. But - to my shame - I wasn't disabled in 2013 and so did not focus on Whatcott.

However, in hindsight, it seems that an appropriate concession to even the very high status accorded expression in our culture that such constitutionally (and quasi-constitutionally) meritorious groups would be that open, disability-directed ridicule be prohibited, even if by the relatively weak remedies of provincial HR statutes.

Perhaps this is what the court alludes to when it gives itself a legal 'out' in the following passage:
[63] In our view, limits on freedom of expression are also justified where it is used to disseminate expression that, even if it does not fully meet the definition of hatred set out in Whatcott, nonetheless forces certain persons “to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy” (Whatcott, at para. 75; see also Keegstra, at p. 765). As Professor Waldron writes:
[A] person [must be able] to walk down the street without fear of insult or humiliation, to find the shops and exchanges open to him, and to proceed with an implicit assurance of being able to interact with others without being treated as a pariah. [p. 220]
The individual/collective insult distinction made in Ward seems further disingenuous and unpersuasive. Why should a disabled individual insulted on the basis of their disability have fewer remedies than those effected by expression directed at a group? Why does it matter to them (and for that matter to the disabled 'group' to which they belong) that the offensive expression was not 'targeted' at them, however dubious that claim may be in the present case?

Finally, the essence of the fundamental doctrinal legal dispute may be at least identified by whether the reader agrees or disagrees with the majority in Ward when they say:
[109] In both his video and his show, Mr. Ward mocked some of Mr. Gabriel’s physical characteristics. Making fun of a person’s physical characteristics may be repugnant; it most certainly is when the person in question is a young person with a disability who contributes with determination to society. But expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted (Whatcott, at paras. 90‑91).
If you truly have grounds for ridicule, you can do it without relying on the target's race, sexual orientation, disability or any other protected grounds. To do so is simply offensive and lacks the poignancy that we expect from quality comedy - it has no redeeming value otherwise. Why should we tolerate that? Are the able-bodied majority of the court so certain of their view that such expression does not "incite others to detest or vilify the humanity of the person targeted"? I, and most other disabled people, would have little hesitation in disagreeing with this conclusion. This ruling, despite it's frequent analytic competency, seems generated from a by-gone era.

. Northern Regional Health Authority v. Horrocks

In Northern Regional Health Authority v. Horrocks (SCC, 2021) the Supreme Court of Canada considered the vexed issue of which legal regime had jurisdiction over a human rights complaint that occured in a employment/labour relations context (another Weber exclusive jurisdiction issue). The issue is similar to that of 'paramountcy' [as in Croplife Canada v Toronto (Ont CA, 2005) but instead of being between competing levels of goverment here it's between competing adjudicators at the same level of government (here a provincial human rights tribunal and a labour arbitrator):
[1] Labour relations legislation across Canada requires every collective agreement to include a clause providing for the final settlement of all differences concerning the interpretation, application or alleged violation of the agreement, by arbitration or otherwise. The precedents of this Court have maintained that the jurisdiction conferred upon the decision‑maker appointed thereunder is exclusive. At issue in this case, principally, is whether that exclusive jurisdiction held by labour arbitrators in Manitoba extends to adjudicating claims of discrimination that, while falling within the scope of the collective agreement, might also support a human rights complaint.

....

[5] ... Properly understood, this Court’s jurisprudence has consistently affirmed that, where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation — generally, a labour arbitrator — is exclusive. Competing statutory tribunals may carve into that sphere of exclusivity, but only where that legislative intent is clearly expressed. Here, the combined effect of the collective agreement and The Labour Relations Act, C.C.S.M., c. L10 is to mandate arbitration of “all differences” concerning the “meaning, application, or alleged violation” of the collective agreement (s. 78(1)). In its essential character, Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate. The Human Rights Code does not clearly express legislative intent to grant concurrent jurisdiction to the adjudicator over such disputes. It follows that the adjudicator did not have jurisdiction over the complaint, and the appeal should be allowed.
The majority of the court considers these nebulous issues at paras 13-41. In this case the labour relations regime was dominant, but the case softened Weber's exclusivity to allow for as yet undefined exceptions where 'concurrent jurisdiction' exists:
[41] Where two tribunals have concurrent jurisdiction over a dispute, the decision‑maker must consider whether to exercise its jurisdiction in the circumstances of a particular case. For the reasons given below, concurrency does not arise in this case. I would therefore decline to elaborate here on the factors that should guide the determination of the appropriate forum.
. Wallwork v. Toyota Manufacturing Canada Inc.

In Wallwork v. Toyota Manufacturing Canada Inc. (Div Ct, 2021) the Divisional Court addressed some basics of employment discrimination:
[37] As set out in Longueépée v. University of Waterloo, 2020 ONCA 830, at para. 66, once the employee has demonstrated that an employer’s requirement is prima facie discriminatory, the employer has the burden of proving that:
a. the standard was adopted for a purpose or goal that is rationally connected to the function being performed;

b. that it adopted the standard in good faith in the belief that it was necessary for the fulfilment of that purpose or goal; and

c. that the standard was reasonably necessary to accomplish its purpose, in the sense that the employer cannot accommodate the person without undue hardship.



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