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Human Rights

. Ingram v. Human Rights Tribunal of Ontario

In Ingram v. Human Rights Tribunal of Ontario (Div Court, 2022) the Divisional Court considered a human rights judicial review case where an aggrieved employee both sued (in a separate proceeding) for wrongful dismissal (with the lawsuit avoiding any mention of the HRC) and as well filed the present HRTO complaint, apparently in the hope of maintaining both proceedings. At issue in this judicial review were the 'either/or' provision of HRC s.34(11), which read:
34(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

...

Civil remedy

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
Same

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
The court's reasoning is set out at paras 31-52.

. Ontario (Health) v. Association of Ontario Midwives

In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal cited a leading case in determining human rights discrimination:
[101] The Adjudicator articulated the well-established three-step test the complainant must meet to demonstrate prima facie discrimination, citing to the Supreme Court’s decision in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33. To establish a prima facie case of gender discrimination, the claimant must show that:
(1) they are a member of a group protected by the Code;

(2) they have been subjected to adverse treatment; and

(3) their gender was a factor in the adverse treatment.
The court approves the Adjudicator's ruling as 'reasonable' at paras 102-122.
. Ontario (Health) v. Association of Ontario Midwives

In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal considered human rights systemic discrimination:
[10] Adverse impact discrimination occurs when seemingly neutral rules, policies, procedures, systems, or structures have a disproportionate impact on disadvantaged groups: see Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at paras. 30-31. As Abella J. recognized in Fraser, an increased awareness of adverse impact discrimination has led to a shift away from a fault-based conception of discrimination towards an effects-based model. Identifying adverse impact discrimination involves critically examining systems and structures, recognizing that discrimination is “frequently a product of continuing to do things ‘the way they have always been done’”: Fraser, at para. 31, citing Fay Faraday, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020) 94 S.C.L.R. (2d) 301, at p. 310.

[11] In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, Dickson C.J. defined systemic discrimination, at p. 1139, as follows:
[S]ystemic discrimination in an employment context is discrimination that results from the simple operation of established procedures … none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job”. [Citation omitted.]
Therefore, in a claim of systemic discrimination, it can be difficult to identify one single rule, policy, or procedure that results in adverse impact discrimination. Often “there is no single identifiable ‘villain’, no single action identifiable as ‘discriminatory””: Fraser, at para. 35, citing Mary Eberts & Kim Stanton, “The Disappearance of the Four Equality Rights and Systemic Discrimination from Canadian Equality Jurisprudence” (2018) 38 N.J.C.L. 89, at p. 92. Rather, systemic discrimination may emerge from an “invisible structure, with its accompanying set of practices” or as a “complex web of seemingly neutral, systemic barriers”: Fraser, at para. 35, citing Eberts & Stanton, at p. 92; British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at para. 42.
. Ontario (Health) v. Association of Ontario Midwives

In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal considered the judicial review standard of review under HRC s.45.8 [in the statute it's "patent unreasonableness"], and concluded that it was normal Vavilov 'reasonableness' [paras 44-83].

. Babb v. Canada (Attorney General)

In Babb v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered bona fide occupational requirements (BFOR) in a federal labour case:
[2] This application for judicial review is simply about whether the Board reasonably applied the Supreme Court’s teachings in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161 [McGill] and in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561 [Hydro-Québec] to the evidence before it.

....

[22] Relying on the Supreme Court of Canada’s decision in McGill, the Board reiterated the three-part test to justify the two-year standard (the Meiorin test) (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 at para. 54 [Meiorin]), namely requiring the employer to prove:
1) That the standard was adopted for a purpose rationally connected to the performance of the job;

2) That the standard was adopted in honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and,

3) That the standard is reasonably necessary to accomplish that purpose, demonstrated by showing that it would be impossible to accommodate the individual without imposing undue hardship on the employer.
. Rosianu v. Western Logistics Inc.

In Rosianu v. Western Logistics Inc. (Fed CA, 2021) the Federal Court of Appeal commented on the use of an investigator's report by the CHRC:
[70] It is well-settled law that courts can consider the Investigator’s Report to constitute the main reasoning of the CHRC. As I explain below, this principle was established many years before the CHRC followed the Investigator’s recommendation in issuing the impugned decision.

[71] The seminal authority on this issue is Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392, in which this Court stated at paragraph 37:

[72] In my view, the appellant's argument on this issue must fail. While it is true that the investigator and Commission do have “mostly separate identities”(Canada (Human Rights Commission) v. Pathak (1995), 1995 CanLII 3591 (FCA), 180 N.R. 152, [1995] 2 F.C. 455 at para. 21, per MacGuigan J.A., (Décary J.A. concurring)), it is also well-established that, for the purpose of a screening decision by the Commission pursuant to section 44(3) of the Act, the Investigator cannot be regarded as a mere independent witness before the Commission (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at para. 25 [SEPQA]). The Investigator's Report is prepared for the Commission, and hence for the purposes of the investigation, the Investigator is considered to be an extension of the Commission (SEPQA, supra at para. 25). When the Commission adopts an Investigator's recommendations and provides no reasons or only brief reasons, the Courts have rightly treated the Investigator's Report as constituting the Commission's reasoning for the purpose of the screening decision under section 44(3) of the Act (SEPQA, supra at para. 35; Bell Canada v. Communications, Energy and Paperworkers Union of Canada (1999) 1998 CanLII 8700 (FCA), 167 D.L.R. (4th) 432, [1999] 1 F.C. 113 at para. 30 (C.A.) [Bell Canada]; Canadian Broadcasting Corp. v. Paul (2001), 274 N.R. 47, 2001 FCA 93 at para. 43 (C.A.)).

[73] This principle has been uniformly applied since then, including by this Court (see, for example, Love v. Canada (Privacy Commissioner), 2015 FCA 198 at para. 10, 2015 CarswellNat 4560 (WL Can); Harvey v. Via Rail Canada Inc., 2020 FCA 95 at para. 4, 2020 CarswellNat 1671 (WL Can)).

[74] Evidently, the situation differs when the CHRC decides not to follow the Investigator’s recommendation (see Ennis at para. 72). In such cases, it must explain why it decided not to do so. This is not such a case.
. 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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