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Human Rights (Federal) - Discrimination. Jacob v. Canada (Attorney General)
In Jacob v. Canada (Attorney General) (Ont CA, 2024) the Court of Appeal considered (and granted) a 'friend of the court' intervenor application.
Here the court cites case authority on adverse-impact discrimination, under both human rights and Charter s.15 law:[10] This appeal is likely to call upon the court to grapple with how to approach adverse-impact discrimination and substantive equality in the context of lower income individuals living with disabilities. I see the unique expertise of the ISAC, a well-recognized organization with specialized knowledge in this area of the law, being of assistance to this court in considering how the legal principles, as established by the Supreme Court of Canada in cases such as R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 98, and Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113, should apply against this contextual backdrop.
[11] This appeal will have potentially far-reaching implications, with the potential to impact people living with disabilities and income insecurity. I do not see the ISAC as simply asking this court to reaffirm or overturn existing law. Rather, their focus will be on how to approach adverse-impact discrimination and substantive equality. This is a notoriously difficult area of law and one that has seen some recent fluctuation. Assisting the court in navigating that law in the specific area of their expertise falls within the proper role of an intervener. . Canada v. Hudson
In Canada v. Hudson (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) Crown appeals of stays issued [under Federal Court Act s.50(1)(b)] against two RCMP-related uncertified class actions (Hudson and Pierrot), here on the basis that they were duplicative of pre-existing (and certified) class actions (Greenwood and AMPMQ).
Here, the court examines an alleged contrast between 'implicit' (SS: presumably, 'case-specific') with 'systemic' human rights discrimination:(a) Alleged error in law: conflating implicit with systemic discrimination
[62] The appellant and the interveners claim that the motion judge erred in characterizing the claims in Hudson and Greenwood by incorrectly conflating “implicit” with “systemic” discrimination and relying on a bright line distinction between implicit / systemic discrimination on the one hand and explicit acts of discrimination on the other. They say that this was an error in law warranting this Court’s intervention. I disagree.
[63] Read fairly, the motion judge’s reasons do not conflate systemic discrimination with implicit discrimination. At paragraph 22, the motion judge concludes that “the factual basis of systemic racism in Hudson is based on implicit misconduct, policies, and procedures that do not require explicit actions in order to be discriminatory.” The comment in paragraph 24 that the focus of Hudson is “systemic racism, an implicit misconduct” must be understood in light of that earlier finding and should be read as “systemic racism, in this case, an implicit misconduct.”
[64] The motion judge determined that Hudson, at its core, focuses on systemic racism. The misconduct alleged was not being considered for promotion and receiving lower remuneration and worse training, education and mentorship than non-racialized colleagues. Although there were allegations of explicitly discriminatory conduct directed at Ms. Hudson, the focus was on implicit misconduct — the discriminatory impact resulting from a failure to have or enforce adequate procedures, policies and guidelines to protect against racism: Reasons at paras. 19, 22, 24, and 27. “In Hudson, the Plaintiff merely had to exist and have certain immutable characteristics to suffer the alleged discrimination”: Reasons at para. 27.
[65] The motion judge determined that this made Hudson distinct from Greenwood, which focuses on “bullying, intimidation, and harassment”, and AMPMQ, which focuses on “abuse[s] of power” — particularly in relation to French-speaking employees and those who exercised their freedom of association and right to unionize: Reasons at paras. 17-18. The motion judge concluded that Greenwood involved unwanted physical touching, retaliation for complaining and demeaning and belittling comments. “The misconducts complained of in Greenwood were because an individual committed an act, such as filing a complaint or report”: Reasons at para. 27. The motion judge concluded that there was no indication that systemic racism would be dealt with in Greenwood: Reasons at para. 29.
[66] The motion judge used the terms “explicit” and “implicit” to differentiate between the types of misconduct alleged in Hudson and Pierrot on the one hand and Greenwood and AMPMQ on the other. This was part of an analysis of the factual foundation — the types of events giving rise to the claims in each proceeding. The terms were not used to underpin the motion judge’s conclusion about the legal basis for the claims. The motion judge determined that the focuses of the claims were different — systemic racism or discrimination in Hudson and Pierrot, bullying, intimidation and harassment in Greenwood, and abuses of power in AMPMQ.
[67] There is no error warranting this Court’s intervention. . Volpe v. Wong-Tam
In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal considered a plaintiff's appeal from a successful SLAPP defendant's dismissal motion [under CJA 137.1], brought in response to the defendants being sued for defamation and related torts for bringing an municipal motion to stop advertising with the appellant's newspaper.
In these quotes the court considers a challenge to the CJA SLAPP regime under s.93 of the Constitution (non-Charter) ['Legislation respecting Education']:Section 93 of the Constitution Act, 1867
[40] The appellants also advanced a cluster of arguments related to the proposition that their speech could not be accurately characterized as discriminatory because it was an articulation of Roman Catholic doctrine, which is protected by s. 93 of the Constitution Act, 1867. This argument was also rejected at the conclusion of the appellants’ oral submissions.
[41] There is no merit to this argument. Section 93 entrenches the rights of Roman Catholic separate school supporters to Roman Catholic separate schools that hold and teach Roman Catholic doctrine, and to have their children receive a Roman Catholic education based on that doctrine: Reference re Bill 30, An Act to Amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, para. 58-60, per Wilson J. The rights protected by s. 93 are not engaged by the matters in dispute between the parties.
[42] Furthermore, the appellants mischaracterize the motion judge’s findings. The motion judge found that the appellants are free to “raise concerns about policies concerning issues affecting the LGBTQ2S+ community in the TCDSB. [They] can criticize the conduct of trustees (and councillors) who support such policies.” The problem with the appellants’ articles was not that they took a position adverse to that of LGBTQ2S+ advocates with respect to Roman Catholic doctrine and education about sexuality. The problem was that they “used derogatory and prejudicial language” to do so, using stereotypes of “predation, pedophilia, and socially destructive behaviour.” This was the aspect of the appellants’ speech that exposed them to the complaint that they expressed discriminatory statements.
[43] The appellants’ constitutional arguments thus failed, and accordingly so do those non-defamation causes of action (misfeasance in public office and inducing breach of contract) which, on appeal, are entirely dependent on the success of the constitutional arguments. . Tarek-Kaminker v. Canada (Attorney General)
In Tarek-Kaminker v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR of human rights issues in a labour grievance [here before the Federal Public Service Labour Relations and Employment Board (FPSLREB)].
In these quotes the court considers the Board's treatment of prima facie discrimination, here in a family status context:[91] While the test for family status discrimination is not uniform across the country, the parties agree that the applicable test for establishing a prima facie case of discrimination on the basis of family status at the federal level is that set out in this Court’s decision in Johnstone, above.
[92] In Johnstone, this Court held that there should be no hierarchy of human rights. Consequently, the test that should apply to a finding of prima facie discrimination on the ground of family status should be substantially the same as the test that applies to the other enumerated grounds of discrimination: Johnstone, above at para. 81.
[93] This Court went on in Johnstone to adopt the definition of a “prima facie case” provided by the Supreme Court of Canada in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. There the Supreme Court held that a prima facie case of discrimination was one that “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”: at para. 28.
[94] Because prima facie discrimination on different prohibited grounds can arise in a variety of different factual situations, the test to be applied must necessarily be flexible and contextual: Johnstone, above at paras. 81, 83. As was noted by this Court in Canada (Attorney General) v. Canada (Human Rights Commission), 2005 FCA 154, a flexible legal test for prima facie discrimination “is better able than more precise tests to advance the broad purpose underlying the Canadian Human Rights Act, namely, the elimination in the federal legislative sphere of discrimination [in] employment”: at para. 28.
[95] This Court further recognized that the specific types of evidence and information that may be pertinent or useful to establish a prima facie case of discrimination will largely depend on the prohibited ground of discrimination at issue: Johnstone, above at para. 84.
[96] With this in mind, this Court held at paragraph 93 of Johnstone that in order to make out a prima facie case of workplace discrimination based on the prohibited ground of family status resulting from childcare obligations, the claimant must show:i) that a child is under his or her care and supervision;
ii) that the childcare obligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice;
iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. [97] This Court elaborated on the third element of the test in Johnstone (sometimes referred to as the duty to “self-accommodate”), explaining that a claimant will have to show that neither they nor their spouse can meet their enforceable childcare obligations while continuing to work. The claimant will also have to show that available childcare services or alternative arrangements are not reasonably accessible to them to enable them to meet their work needs, such that he or she is facing a bona fide childcare problem. This is a highly fact-specific question, and each case must be reviewed on an individual basis, having regard to all of the relevant circumstances: Johnstone, above at para. 96.
[98] Not every conflict between one’s professional obligations and one’s family responsibilities constitutes prima facie discrimination. Parents usually have various options available to meet their parental obligations. As a result, it cannot be said that a childcare obligation has resulted in an employee being unable to meet his or her work obligations unless no reasonable childcare alternative is reasonably available to the employee. It is only where the employee has sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill his or her parental obligations, that a prima facie case of discrimination on the basis of family status will be made out: Johnstone, above at para. 88. . Tarek-Kaminker v. Canada (Attorney General)
In Tarek-Kaminker v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR of human rights issues in a labour grievance [here before the Federal Public Service Labour Relations and Employment Board (FPSLREB)].
In these quotes the court addresses 'compound discrimination' in the federal context (ie. where several HRC grounds of discrimination are alleged):[70] For greater certainty, section 3.1 of the Act provides that a discriminatory practice “includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds”.
[71] Human rights jurisprudence recognizes that categories of discrimination may overlap, and individuals may suffer historical exclusion on the basis of, for example, both race and gender, age and disability, or some other combination thereof. Categorizing such discrimination as being primarily based on one ground or another “misconceives the reality of discrimination as it is experienced by individuals”: Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554 at paras. 152-153, per L’Heureux-Dubé, dissenting, but not on this point.
[72] Indeed, as this Court observed at paragraph 48 of Turner v. Canada (Attorney General), 2012 FCA 159, where multiple grounds of discrimination are present, a single axis analysis may minimize what is in fact, compound discrimination. That is, each proscribed ground, when viewed singly, may not justify a finding of discrimination, but a different picture may emerge when the grounds are considered together.
[73] In other words, in cases where multiple prohibited grounds of discrimination are at play, the whole may be greater than the sum of its parts. Discrimination on the basis of more than one prohibited ground may result from the compounding effect that can occur where multiple, intersecting grounds of discrimination are present, affecting the rights of the individual to substantive equality.
[74] As the Supreme Court observed in Ontario (Attorney General) v. G., 2020 SCC 38: “[s]ubstantive equality demands an approach ‘that looks at the full context, including the situation of the claimant group’”. Regard must also be had to the impact of the actions in issue on the claimant and the groups to which they belong, “recognizing that intersecting group membership tends to amplify discriminatory effects”: at para. 47, citing Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, at para. 27; Withler v. Canada (Attorney General), 2011 SCC 12 at para. 40.
[75] Intersecting group membership can, moreover, create unique discriminatory effects not visited upon any single group of which the claimant is a member, when viewed in isolation: Ontario (Attorney General) v. G., above at para. 47. . Canada (Attorney General) v. Ennis
In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal sketches human rights discrimination in the CHRC system:[64] The case law also firmly recognizes that, to make out a case of discrimination, a complainant must establish a nexus between the disadvantage suffered and one of the prohibited grounds listed in the CHRA to establish a prima facie case of discrimination. In other words, the claimed disadvantageous treatment must be shown to arise because of one of the prohibited grounds. As has been noted by the Supreme Court of Canada and this Court, the relevant test requires complainants to demonstrate that (i) they have a characteristic protected from discrimination under the relevant human rights legislation, (ii) they experienced an adverse impact with respect to the service at issue, and (iii) the protected characteristic was a factor in the adverse impact: see Moore v. British Columbia (Ministry of Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33; Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591 at para. 24; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795 at para. 86 (per Justice Abella); Attaran at paras. 19-24; Johnstone v. Canada (Border Services Agency), 2014 FCA 110, 459 N.R. 82 at paras. 75-76 and 81-84.
[65] In assessing the sufficiency of the evidence, the Commission is charged with determining whether there is enough evidence in respect of the requisite nexus, the claimed grounds of discrimination and the alleged prejudice suffered by a complainant to warrant a referral to the Tribunal for inquiry: see for example Love v. Canada (Privacy Commissioner), 2015 FCA 198, 475 N.R. 390 at paras. 23-26; Anani at paras. 48, 68-72; Stukanov v. Canada (Attorney General), 2021 FC 49, 2021 CarswellNat 345 at paras. 40-47; Hartjes v. Canada (Attorney General), 2008 FC 830, 334 F.T.R. 277 at paras. 23-30; see also, by analogy with British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210, Edgewater Casino v. Chubb-Kennedy, 2014 BCSC 416, 21 C.C.E.L. (4th) 314 at paras. 39-41, aff’d 2015 BCCA 9.
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