Commentary on new developments in human rights law published in the Human Rights Digest newsletter.
Accommodation of Caregiving Responsibilities: A Key Employment Issue
A jurisprudential logjam seems to be breaking up on the issue of the caregiving responsibilities of workers. In two recent decisions, Canadian National Railway Co. v. Seeley (CHRR Doc. 13-3041) and Canada (Attorney General) v. Johnstone (CHRR Doc. 13-3006), the Federal Court ruled in favour of women whose family childcare responsibilities conflicted with work rules.
The women were both working for employers with rotating or unpredictable schedules. When Denise Seeley, a freight train conductor whose home depot was Jasper, Alberta, did not report to Vancouver to cover a shortage because she could not arrange adequate childcare, she was fired by Canadian National. When Fiona Johnstone, a border services agent, requested a static shift so that she could make stable childcare arrangements instead of working 56-day rotating shifts, the Canadian Border Services Agency offered her only part-time hours.
For women workers the conflict between work requirements and childcare responsibilities has always been a key equality issue, and women have been penalized as workers because they are the primary caregivers for children and other family members. They have found it necessary to leave paid work, cut back hours, step aside from promotions, or avoid assignments that require travel in order to care for their family members.
Today about 60 percent of women work for pay in Canada. They are almost half the work force, and two thirds of them have children under 6. Some of them are also responsible for older parents — members of the “sandwich generation”. Women (and some men too) are increasingly in conflict with employers who want them as workers, but also want them to function as though they do not have family responsibilities.
In the cases on family status discrimination, federal employers — sometimes represented by the Attorney General of Canada — have made a series of arguments: the ground "family status" does not include parental childcare obligations, since it only protects a "status" not obligations integral to it; figuring out how to balance the obligations of family life and work belongs in the home, not in the workplace; parents make choices about how to care for their children, and those personal choices are not protected by human rights legislation. In short, these federal employers take the position that families have nothing to do with them, and they do not have a duty to accommodate a worker's need to provide adequate childcare.
The B.C. Court of Appeal encouraged this resistance in its 2004 decision in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society (50 C.H.R.R. D/140). That Court ruled that to establish "family status" discrimination a complainant had to show that an employer changed a term or condition of work and the change caused a “serious interference” with a family obligation. Application of this test would defeat most family status discrimination claims.
Fortunately, there is now a line of cases that reject these arguments, including Whyte v. Canadian National Railway Co. (71 C.H.R.R. D/316), Seeley, and Johnstone. The ground "family status" includes childcare obligations, according to the Federal Court, and there is no reason to make the threshold for proving family status discrimination more onerous than it is for any other ground.
There is a new opportunity to address the conflicts between work rules and family obligations, and a new opening for research, study and consultation on how these conflicts affect women and men in their families and at work.
Human Rights Digest 14-3, April 2013
Senate Should Think Hard About Hate Speech
The Harper Government has chosen to support a private member's bill, introduced by Conservative backbencher, Brian Storseth, which repeals s. 13 of the Canadian Human Rights Act. Section 13 prohibits the communication of hate messages by telephone or on the internet. Since 1977, it has been used mainly against prominent white supremacists, such as John Ross Taylor and Ernst Zundel, who have made careers of promoting hatred against Jews and non-whites.
Unfortunately, Bill C-304 is not a careful, thoughtful, forward-looking revision of human rights law. It is a wrong‑headed, anti‑human rights reaction to claims from right-wing journalists that human rights legislation should not permit any questions to be raised about their speech and publications.
The Conservatives have been arguing that only Criminal Code prohibitions against hate speech are necessary, and hate speech provisions in human rights legislation are, on the one hand, illegitimate and heavy-handed, and, on the other hand, too important to be in the hands of human rights institutions.
The House of Commons passed Bill C-304 in June 2012 and it is now in second reading in the Senate. If it passes second reading, it will be referred to a Senate Committee for review and public input before it returns to the Senate for final reading. In other words, although it is the very last minute, there is still time for the Senate to think again.
The Supreme Court of Canada's recent unanimous decision in Whatcott (CHRR Doc. 13-3015) should give the Senators pause. The Supreme Court of Canada, reviewing the constitutionality of the hate speech provision in The Saskatchewan Human Rights Code, decided that it is legitimate and lawful. Prohibitions against hate speech in human rights legislation are a justifiable limit on the Charter guarantees of freedom of expression and religion because their purpose is to discourage and eliminate the effects of systemic discrimination against vulnerable groups.
The Court said the goal of prohibitions against hate speech is not to compel anyone to think correctly, nor is it to protect against representations that are merely repugnant and offensive. The Court ruled that the hate speech provisions in human rights legislation are to be applied objectively, with a focus on extreme manifestations of hatred and, most importantly, with a focus on the likely effect of the expression.
While in Whatcott the Court was dealing with The Saskatchewan Human Rights Code, this ruling confirms the constitutionality of similar hate speech provisions in all human rights laws. Whatcott confirms that, while Bill Storseth and Harper's Conservatives may not like s. 13 of the Canadian Human Rights Act, human rights legislation and human rights institutions have an important role to play with respect to hate speech in Canada, and that role is constitutional.
What the Senators should be alert to, when they come to their final vote, is that s. 13 is the only provision in Canadian statutory human rights law that applies to the internet, because regulation of the internet falls within federal jurisdiction. That means it is the only human rights provision that can address the mode of communication that is now the easiest and most popular one for disseminating racist, anti-Semitic, homophobic and other hateful messages.
The Speaker of the Senate, Noel Kinsella, who for many years was the Chief Commissioner of the New Brunswick Human Rights Commission, took the rare step, for a Speaker, of intervening in the Senate debate on Bill C-304. At the end of his speech, he asked this question: "Do we really not want to have a statutory provision to deal with discrimination on the Internet?"
Senators should think hard.
Human Rights Digest 14-2, February/March 2013
Moore: The Bad News
In the November / December 2012 View Point on the Supreme Court of Canada's decision in Moore v. British Columbia (CHRR Doc. 12-3089), we wrote about the good news. The Supreme Court of Canada swept away a narrow definition of “service” and faulty comparator group analysis, both of which were impeding progress towards inclusion for people with disabilities. In this case, Jeffrey Moore, a child with severe dyslexia who was denied adequate assistance in school to learn to read, was told by lower courts that the service in question was special education, not general education, and that consequently he could only compare himself to other children with special needs. Since he did not receive worse treatment than other children with dyslexia, he could not claim discrimination. Justice Rosalie Abella, for a unanimous court, repudiated this closed-box thinking. It cannot be the case that as long as accommodation for all disabled students is inadequate, human rights law can do nothing. On the contrary, she wrote, adequate special education is the means by which children with disabilities gain access to the education that is the right of every child.
But here is the bad news. It has two parts. First, the Supreme Court of Canada did not find the province liable for the discrimination. Instead, it placed responsibility for the failure to adequately accommodate Jeffrey solely on the shoulders of the school district, finding that, in a time of budgetary restraint, the district could have cut other programs rather than the special assistance that Jeffrey and other children with severe dyslexia needed. The Tribunal had ruled that the province was also liable for the discrimination because it had: imposed a funding cap on monies for special education by restricting the number of students that a district could identify as needing special assistance; under-funded the District; failed to ensure that necessary services, including early intervention, were mandatory; and failed to monitor the activities of the districts. The Tribunal ordered the Province to allocate funding on the basis of actual incidence levels of learning disabilities and to establish mechanisms to ensure that accommodations for students with severe learning disabilities were appropriate and adequate.
But the Supreme Court ruled that this remedy could not be sustained. With respect to the funding cap on monies for children with learning disabilities, Abella wrote: “It is entirely legitimate for the Province to choose a block funding mechanism in order to ensure that districts do not have an incentive to over-report Severe Learning Disabilities students, so long as it …complies with its human rights obligations”. The Court found that the province was not liable in any way for the discrimination.
For the future inclusion of children with severe dyslexia in school systems in British Columbia, this approach is not promising. The responsibility for inclusion has been assigned entirely to school districts, while the senior level of government, which has the statutory authority for education and controls the funding for the districts, is let off the hook.
The second part of the bad news, which is integrally connected to the first, is Abella's distinction between individual and systemic discrimination. She writes that it is not helpful to approach discrimination in a binary way, dividing individual discrimination from systemic discrimination: “A practice is discriminatory whether it has an unjustifiably adverse impact on a single individual or systemically on several”.
However, Abella proceeds to do exactly what she warns against. She finds that this claim was individual, made on behalf of Jeffrey, and the evidence was principally about him. The Tribunal should not have considered systemic evidence regarding provincial funding mechanisms or the entire provincial administration of special education. Apparently, it should have conducted a much narrower inquiry, and left the systemic funding and policy issues alone. The effect of treating this case as an individual one, and the systemic remedies against the province as not legitimate, is to require more parents to take on the long and costly struggle that Jeffrey's parents did.
Although this decision will be known for its resounding endorsement of equal access to education for children with learning disabilities, it is a timid one. Because of its approach to the remedies the Court's decision does not guarantee equal access in fact.
Human Rights Digest 14-1, January 2013
Moore: The Good News
The Supreme Court of Canada issued an important decision in Moore v. British Columbia (Education) (CHRR Doc. 12-3089). For the first time, the Court has made it completely clear that children with disabilities are entitled to an equal education. The Court's cut line is "adequate special education is not a dispensable luxury".
At issue in Moore was the decision of North Vancouver School District No. 44 to close its Diagnostic Centre, which provided intensive remediation for children with severe dyslexia. Just when Jeffrey Moore needed assistance to learn to read, the Diagnostic Centre was closed because of budgetary constraints. Jeffrey's parents were advised by the school psychologist that they should put him in private school because the District could no longer provide him with the services he needed. That was more than fifteen years ago, and, thanks to his private schooling, Jeffrey is now a journeyman plumber, successful and self-supporting.
Jeffrey Moore's parents won at the Tribunal level (54 C.H.R.R. D/245). The Tribunal found that the District and the Province discriminated against Jeffrey by failing to provide him with the accommodation he needed in order to benefit from the public school system. However, at the appeal levels, the B.C. Supreme Court (62 C.H.R.R. D/289) and the majority in the B.C. Court of Appeal (71 C.H.R.R. D/238) became tangled in doctrinal knots that made the law completely defeating to the claims of people with disabilities.
The majority of the B.C. Court of Appeal ruled that the service in question was special education, not general education. Consequently, Jeffrey Moore could only compare himself to other children with special needs. Since he did not receive worse treatment than other children with dyslexia, he could not claim discrimination. The impact of this closed-box thinking was obvious: as long as accommodation for all disabled students was inadequate, human rights law could do nothing.
Fortunately, the Supreme Court of Canada, in a unanimous decision, swept this faulty analysis away. The Supreme Court agreed with the dissenter in the B.C. Court of Appeal, Madam Justice Anne Rowles: the service was, in fact, general education, and special education was the accommodation necessary for Jeffrey and other students with learning disabilities to obtain access to the benefits of general education. Adequate special education cannot be dispensed with at times of budgetary constraint as though it is a luxury, because it is a basic requirement.
Karen Selick and Derek James, of the Canadian Constitution Foundation, have strongly criticized the Moore decision. Their view is that it burdens B.C. taxpayers "with an unlimited liability to pay for special education". Karen Selick claims that providing adequate accommodation to children with learning disabilities will deprive non-disabled children of resources.
Fortunately, the Supreme Court of Canada did not see it this way. Children with learning disabilities do not deserve "back of the bus" treatment, nor are they merely a social burden.
Reiterating the statement of purpose in the B.C. School Act, the Court said "all children are entitled to an education…because a healthy democracy and economy require their educated contribution. Adequate special education…is is the ramp that provides access to the statutory commitment to education made to all children in British Columbia".
(See next issue for "Moore: The Bad News".)
Human Rights Digest 13-8, November / December 2012
Why British Columbia Needs a Human Rights Commission
Only British Columbia and Nunavut do not have human rights commissions. Nunavut's human rights system is still very new, and experimental. British Columbia has no such excuse.
The history of human rights in British Columbia is rocky. Twice in twenty years, the Government of British Columbia has abolished its Human Rights Commission – once in 1983 under Bill Bennett's Social Credit administration, and again in 2002 under Gordon Campbell's Liberals. Gordon Campbell turned legitimate concerns about delays in the Commission's screening process into a rationale for abolishing the Commission entirely and putting in place a “stand-alone” Tribunal. In 2012 British Columbia has been without a commission for a decade, and it shows. It's time to bring it back.
Bringing back the Commission does not mean getting rid of the Tribunal, which adjudicates and settles complaints. The Tribunal must stay. But human rights commissions do not adjudicate complaints and have many other roles than screening complaints at the initial stage. The standard roles of human rights commissions are multiple, because the elimination of discrimination, if we are serious about it, requires a many-pronged approach, including education, research, public reporting, monitoring, initiating systemic complaints, and, sometimes, holding open public inquiries and consultations on urgent and difficult human rights issues. All of these are means to foster a culture that is attuned to human rights and aware of the ways that discrimination occurs and the harms caused by it.
B.C.'s human rights system has been hollowed out. In the absence of a human rights commission, the B.C. Human Rights Coalition, with financial support from the Attorney General, provides some informational workshops about aspects of human rights law, and refers people who need legal representation to the Community Legal Assistance Society ("CLAS"), a publicly funded clinic. CLAS provides representation to some human rights complainants, but a majority of those who go to hearings now are unrepresented, and, we have learned, being unrepresented increases the likelihood that a complainant will lose.
For a decade in British Columbia, there has been no body responsible for protecting the larger public interest in the elimination of discrimination, or for undertaking the more complex tasks that are designed to identify discrimination and prevent it from occurring. There has been no independent public body with a mandate to provide public education on human rights issues, make special reports to the Legislature, address systemic discrimination, or ensure that complainants receive the legal advice and representation they need.
In 2012 British Columbia has no culture of human rights. There is a deep silence. That silence sends the message that there are no serious human rights issues in British Columbia; there are merely individual disputes, of no consequence to the community at large.
But this is certainly not the case. In other provinces, human rights commissions produce public reports and hold public consultations on the human rights of persons with mental health problems, racial profiling by the police, and systemic discrimination against migrant workers. These are issues in British Columbia too and they warrant serious public airing and discussion.
A human rights commission that can carry out the crucial roles of research, review, policy development, public education, community consultation, and inquiry is necessary to keep British Columbians alert to human rights issues, fully informed, and engaged in building an inclusive society.
Human Rights Digest 13-7, October 2012
Freedom of Expression Harper-Style Continued
Now that Parliament is back in session, the Senate will give a cursory review to Bill 304, which repeals s. 13 of the Canadian Human Rights Act, before it passes into law. Section 13 prohibits the communication of hate messages by telephone or on the Internet. As noted in last month’s column, it has been used mainly against prominent white supremacists like John Ross Taylor and Ernst Zündel.
Brian Storseth, M.P., backed by Prime Minister Harper, has declared that s. 13 is an unwarranted restriction on the free speech of Canadians. White supremacists are celebrating. On the Stormfront website, a blogger who calls himself canadafirst has written "This is a huge victory for freedom in Canada. However, we still have other unjust Zionist 'hate' laws that need to go".
On the one hand, Harper frees speech that is racist and gay-hating from the modest restrictions of human rights legislation. On the other hand, Harper is actively suppressing the speech of those who criticize his government, or who disagree on issues of human rights, women's rights, social policy or the environment.
The coalition called Voices states: "Unfortunately, in recent years, the voices of numerous civil society organizations that have acted in the public interest, and contributed to the diversity of Canadian perspectives, have not been respected. Instead, they have been ordered or pressured into silence, sabotaged by dubious political appointments, defunded, gutted, or effectively transformed into tools for the government's partisan agenda". (See http://voices-voix.ca/en)
Among the actions that Voices refers to are: the defunding of the Court Challenges Program, which gave Canadians some access to the use of their constitutional equality rights; the change in the criteria for funding women's organizations so that now neither research nor advocacy can be funded; the denial of funding for Sisters in Spirit, the ground-breaking research project of the Native Women's Association of Canada which has collected evidence of more than 600 murders and disappearances of Aboriginal women and girls; the cuts and elimination of funding to many key women’s and human rights organizations, as diverse as the Child Care Advocacy Association of Canada, the multi-faith coalition KAIROS, the Canadian Arab Federation, Canada Without Poverty, and the Canadian Council for International Co-operation.
It is not only civil society speech that is being curtailed. Harper has also made concerted attacks on knowledge itself; knowledge that Canadians need to understand who we are and to shape social and environmental policy. He has cancelled the long form census, eliminated the National Council of Welfare, cut funding for the Canadian Foundation for Climate and Atmospheric Sciences, closed the National Round Table on the Environment and the Economy, shut down the Experimental Lakes Area, and cut funds for Library and Archives Canada, among other things.
Civil servants whose job it is to be watchdogs on government have also been fired, misrepresented or obstructed, including the former President of the Canadian Nuclear Safety Commission, the Parliamentary Budget Officer, the Chief Electoral Officer, the Chairperson of the Military Police Complaints Commission, and the Chief Statistician.
In sum, while white supremacists are winning a new freedom to speak in Canada, those who believe in human rights, knowledge, and accountability are losing theirs.
Human Rights Digest 13-6, August / September 2012
Freedom of Expression Harper-Style
The Harper Government has decided to repeal s. 13 of the Canadian Human Rights Act. This section prohibits the communication of hate messages by telephone or on the Internet. Since 1977, it has been used mainly against prominent white supremacists, such as John Ross Taylor and Ernst Zündel, who have made careers of promoting hatred against Jews and non-whites.
The three 2007 human rights complaints regarding Mark Steyn’s article on the "rising influence of Islam" broke the pattern, and the media reaction was hysterical. Mark Steyn, Ezra Levant and others began a furious anti-human rights campaign. Human rights commissions became "kangaroo courts" and jack-booted oppressors. Canada’s modest and carefully enforced anti-hate provisions were transmogrified into gigantic threats to freedom of speech. The fact that the complaints against Steyn’s article were summarily dismissed at an early stage was ignored.
Having human rights means that any person can make a complaint. Whether it is a legitimate complaint in law is what human rights commissions and tribunals are there to determine. Outrage at Mark Steyn being "dragged" before a human rights body is entirely misplaced. Steyn is a journalist and he wrote an article that he knew would arouse anger and cause distress to many in the Islamic community. Members of that community have the right to make human rights complaints. The fact that they did, and that commissions and tribunals considered, and then dismissed them, should lead us to conclude that the system works.
However, the Harper Government has chosen to get on the anti-human rights band wagon and support a private member’s Bill, introduced by Conservative backbencher, Brian Storseth, which repeals s. 13 of the Canadian Human Rights Act. Bill C-304 received 3rd reading on June 6, 2012, and, while it will be reviewed by the Senate in the fall, its passage is a fait accompli.
Mr. Storseth claims that repeal is essential to protect freedom of speech in Canada. However, this is the kind of speech that Mr. Storseth wants to be "free":
We believe that this country was built by white people, and that minorities... are ruining this nation.
We demand a crime-free, white-ruled society without the daily fear of rape, robbery, and murder. All immigration from non-white nations must be stopped. Mud people should be repatriated to the lands of their ancestors. (Chilliwack Anti-Racism Project Society v. Scott (1996), 27 C.H.R.R. D/446 at § 43 and 46 (C.H.R.T.))
Mr. Storseth and his fellow Conservatives contend that the hate propaganda provisions of the Criminal Code are sufficient. However, as David Matas pointed out to the Justice Committee when it was considering this Bill, the notion that it has to be either the Criminal Code or nothing will result in nothing being done because the police and the courts view the Criminal Code as too draconian.
Going back to only Criminal Code protections is a throw back to the days before human rights legislation. We learned from those days that ordinary laws, in the hands of the courts, provided no protection from discrimination. Human rights legislation is necessary. The Harper Government has now taken away the right of individual Canadians to make complaints when we believe that internet speech promotes hatred.
The upshot of Bill C-304 is that racism, anti-Semitism, and homophobia will be more difficult to counteract in Canada because we are "free" to express them and publish them on the internet. When Canadians can disseminate hatred, but not act to stop it, we are gagged, not freed.
Shelagh Day, President & Senior Editor, Canadian Human Rights Reporter
Human Rights Digest 13-5, July 2012
The Wrong Moves for Saskatchewan Human Rights
A founder of Canadian human rights protection, Saskatchewan, is witness to ominous developments that worry rights advocates across the country: the abrupt and involuntary departure, without cause, of several senior staff at the Saskatchewan Human Rights Commission, among them the supervisor of mediations and investigations, and the resignation or retirement of other key personnel.
These surprising moves come in the wake of legislation abolishing the Saskatchewan Human Rights Tribunal last year without meaningful consultation and input from human rights NGOs. Many are wondering where human rights protection in the province is headed.
Recent events seem to set back access to human rights protection in the province 40 years. Though the original Saskatchewan Bill of Rights Act, 1947, contained antidiscrimination provisions, there is no reported case of a victim of discrimination actually getting justice under that statute. It doesn't take rocket science to figure out why: the legislation left complainants on their own to advance their claims before the courts. How many marginalized victims of discrimination can afford to hire a lawyer and launch their own court proceedings? In 1972, after 25 years of this ineffectual approach, the Saskatchewan Human Rights Commission was established, with power to investigate complaints and take them to hearing before a specialized tribunal. In 1979, The Saskatchewan Human Rights Code equipped the Commission with extensive authority to overcome systemic barriers at work, in education, and with regard to public services. The Commission — and Saskatchewan — were recognized as national leaders in human rights protection.
In the past three years, the model established in the 1970s has been seriously eroded. The government dismantled the province's Human Rights Tribunal, saying that complaints must be taken to court. Legislative amendments give the Chief Commissioner the last word as to who would get their "day in court" and make his discretion complete. He need only declare, "having regard to all the circumstances of the complaint, a hearing of the complaint is not warranted". Complainants whose cases are dismissed by the Chief Commissioner have no avenue of redress except to apply for judicial review by the courts at their own expense. Those 25 static years under the Saskatchewan Bill of Rights tell us how that will go!
This seems to signal that leadership in human rights enforcement seems to have moved from the Commission, a deliberative body, to the office of the Chief Commissioner alone. Statements from the Chief Commissioner signal that the new emphasis of the Commission is "directed" mediation. Just how this mediation is supposed to be effective in the absence of a credible rights enforcement process, is a puzzle. The recent departures have the left the Commission with no lawyers on staff to advise investigators on a daily basis, to carry cases forward to the Court of Queen's Bench and beyond, or to serve the Commission in any other capacity. For a complainant with no hope of having his or her case taken forward vigorously and effectively, "mediation" may be simply another term for "give up now rather than later".
This human rights crisis is not just about Saskatchewan. What has happened here may have a ripple effect across Canada, a country that has adhered to some significant international norms of human rights protection, like the "Paris Principles" approved by the United Nations. These principles call on governments to establish adequately funded independent human rights agencies with the broadest mandate possible, not just to promote but also to protect human rights. In particular, the Paris Principles expect human rights commissions to engage with marginalized groups and to afford members of those groups access to justice, to an adjudicative process to determine the merits of their claims, and to effective remedies for violations of their human rights.
Saskatchewan is not isolated from these international norms. Changing the mandate and vision of the Human Rights Commission cannot be left to the exclusive purview of the government or the Chief Commissioner, because human rights belong to the people, especially marginalized people, and their views are central to this discussion. Adhering to the spirit of the Paris Principles means holding public consultations throughout the province into the next generation of human rights legislation and its administration. This should have been done three years ago. It must be done now.
The way forward should entail restoring the tribunal system to bring this province back in line with the rest of Canada, establishing true independence from government in the appointment of Commission members, beginning with the Chief Commissioner and positioning the Human Rights Commission as an independent body responsible to the people of Saskatchewan through the legislative assembly as a whole.
Finally, the legislative assembly must provide adequate funding to the Commission so that it is able to do an effective job in both promoting and protecting human rights.
Guest Column by Ken Norman, Professor of Law, University of Saskatchewan;
(An earlier version of this article was published in the Regina Leader-Post April 24, 2012.)
Human Rights Digest 13-4, June 2012
Let’s Hear the Merits
The Government of Canada is appealing the April 18, 2012, decision of the Federal Court (CHRR Doc. 12-3015), which cleared the way for the complaint of the First Nations Child and Family Caring Society (“FNCFCS”) to proceed. The Government will try again in the Federal Court of Appeal to stop this complaint from proceeding to a hearing on the merits.
The basic allegation of FNCFCS is that the Government of Canada under-funds child welfare services for on-reserve First Nations children. Provinces fund child welfare services better, and FNCFCS says that the federal government’s under-funding of child welfare services has a systemic discriminatory impact on the lives of Aboriginal children living on reserves.
The Government of Canada asked the Canadian Human Rights Tribunal to dismiss the complaint on a preliminary motion arguing that the complaint is not properly grounded in the law because: (1) funding is not a service within the meaning of the Canadian Human Rights Act, and (2) the complaint relies on an improper comparison between federal and provincial governments.
The Tribunal dismissed the complaint on the grounds that the Act does not permit a comparison between services provided by two different service providers to two different sets of recipients. In other words, FNCFS cannot compare services provided by the federal government to on-reserve children to services provided by provincial governments to off-reserve children. The Tribunal concluded that, in the absence of a proper comparator group, there could be no finding of adverse differential treatment against the Government of Canada, and so the complaint could not proceed.
The Federal Court of Canada overturned this Tribunal decision, breathing some common sense into interpretation of the Act. The Federal Court pointed out that there are many complaints in which the requirement that there be a direct comparison with another person or group who is receiving the same service from the same service provider is not possible or relevant. In many disability cases, a person with a disability does not have someone to compare himself to, but must request the different and particular treatment that will help him to overcome barriers. As the Court notes, comparison is an evidentiary tool that can illuminate how discrimination works in a particular case. But it is not a requirement of the law.
With respect to Aboriginal people, the situation is distinct. The Government of Canada provides some services only to Aboriginal people on reserves. Similar services — health, education, child welfare —are provided to other Canadians by provincial or territorial governments. If the Canadian Human Rights Act cannot apply when Aboriginal people wish to complain that a service provided only to them is so deficient that it constitutes systemic discrimination, the Act cannot respond to the realities of their lives.
When the Government finally, in 2007, repealed the statutory bar to human rights complaints being filed against Band Councils or the Government of Canada when they were acting under the Indian Act, Minister Jim Prentice said that Aboriginal people could now file complaints regarding access to services or the quality of services available to them on reserve. Nonetheless, before the Tribunal and the Federal Court, the Government of Canada has argued exactly the opposite. Aboriginal people cannot complain about the quality of a service provided only to them —says the Government of Canada —because they must make a comparison, and they have no other group to compare themselves to.
The Federal Court found that this interpretation was unreasonable because it excludes First Nations Canadians from protection when services are provided only to Aboriginal people.
Now the Government of Canada will appeal. The Assembly of First Nations finds the Government of Canada’s conduct contradictory. On the one hand, at the April 2012 United Nations Forum on Indigenous Peoples Canada provided assurances that it is committed “to promoting reconciliation between the Aboriginal and non-Aboriginal population in Canada”. On the other hand, at home, the Government of Canada’s approach to this case “is completely adversarial, contrary to reconciliation and partnership and…a continuing and deliberate violation of the rights of…First Nations children”.
Human Rights Digest 13-3, April / May 2012
Accommodation in the 21st Century
Gwen Brodsky, Shelagh Day and Yvonne Peters have authored an important new report entitled Accommodation in the 21st Century. The report describes the post-Meiorin (35 C.H.R.R. D/257) legal landscape for litigating the substantive equality rights of people with disabilities in Canada and identifies new “knots in the jurisprudence” that are currently setting back efforts to make employment and services more inclusive for people with disabilities.
Thirty years ago, for people with disabilities living in Canada, concepts of discrimination and equality were new, unformed and relatively untested. The recognition of disability-related barriers as a matter for human rights concern and scrutiny represented a qualitative change in the understanding of the disability experience. The inclusion of prohibitions against discrimination based on disability in statutory human rights legislation offered people with disabilities the prospect of recognition as equal human beings and redress for their chronic exclusion and social and economic disadvantage.
After the introduction of these protections, there was incremental progress in cases like Canadian Odeon Theatres Ltd. v. Huck (6 C.H.R.R. D/2682), which clarified that public places, like movie theatres, needed to be modified to make space for people with disabilities. But, the report’s authors note, it was the Supreme Court of Canada’s decisions in Meiorin and Grismer (36 C.H.R.R. D/129) that ignited a larger aspiration for equality in employment and services and genuine optimism among people with disabilities. Together, Meiorin and Grismer offered the promise that human rights legislation would take adverse effects discrimination seriously, and that the duty to accommodate would engage with systemic obstacles to equality.
The report finds, however, that the promise ofMeiorin and Grismer is now under attack. The post-Meiorin and Grismer case law reveals disturbing trends. Perhaps because these decisions tightened up the law on respondent justifications, by integrating the duty to accommodate to the point of undue hardship into the bona fide justification defence, respondents have made efforts to prevent complainants from advancing beyond the prima facie discrimination stage. There has been increased pressure to complicate the test for a prima facie case of discrimination. The result is new conflict and confusion in the jurisprudence, particularly concerning the meaning of discrimination, and where the analytical line should be drawn between prima facie discrimination and justification.
The respondent push-back has resulted in new knots in the jurisprudence, which the authors describe and attempt to untangle. They identify the efforts being made to return to a minimalist version of accommodation — by narrowing the definition of discrimination and returning to an emphasis on stereotype; by applying formalistic versions of comparator group analysis, which defeat legitimate claims and distort accommodation analysis; and by adopting too narrow definitions of services.
Since Meiorin and Grismer were handed down, the United Nations General Assembly adopted the Convention on the Rights of People with Disabilities (“CRDP”), which Canada ratified in 2010. The CRDP restates and reinforces the promise of transformation and inclusion that the two landmark Supreme Court of Canada decisions in Meiorin and Grismer hold out.
Since Canadian human rights law must now be interpreted in light of the CRDP, the authors conclude that, in the 21st century, adjudicators and governments should be striving to move us, with all speed, towards the goal of full inclusion. In particular, they conclude that the Supreme Court of Canada needs to renew its recognition that the fulfillment of the rights of persons with disabilities requires far-reaching, deliberate and systemic change to workplaces and services.
Accommodation in the 21st Century can be found on the Canadian Human Rights Commission website.
Human Rights Digest 13-2, March 2012
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