In December 2014, the Government of Saskatchewan amended The Saskatchewan Human Rights Code to – among other things – raise the maximum possible award for injury to feelings, dignity, and self-respect from $10,000 to $20,000. This appears to be a response to a decision handed down by the Saskatchewan Court of Queen's Bench in July in the case of John Pontes and Empire Investment Corporation (CHRR Doc. 14-3122). But is this a sufficient response?
In the case of X. v. Empire Investment Corp., the Saskatchewan Court of Queen's Bench found that John Pontes violated The Saskatchewan Human Rights Code for the fifth time. Mr. Pontes is the sole owner of Northwoods Inn & Suites in Saskatoon, and, once more, he was found to have sexually harassed a female employee.
The Court described Northwoods Inn & Suites as an aging and out-dated facility that is regularly used by individuals who are transient and struggling to get off social assistance. The staff at Northwoods, like the clientele, tend to be disproportionately from groups that are socially and economically marginalized. During her time on staff, Ms. X testified that the workforce was largely composed of recent immigrants and former welfare recipients, most of whom were women.
Soon after she was hired, Ms. X began to receive unwanted attention from Mr. Pontes. He told her she was beautiful, “looked like a movie star”, asked her to bring him coffee and come round his desk so that he could check out her “tight ass”, invited her out for dinner and to visit the back of his van, said he wanted to rub her pussy the right way, and told her that even though he was 66 years old he could still give her the “best orgasm ever”. He asked her if she was a “trickster”, which was his term for prostitute.
After working with Mr. Pontes for about three months, Ms. X began to feel increasingly anxious about being summoned to his office where most of his lewd comments were made. She dreaded Mr. Pontes' attentions, which veered from unwanted sexual commentary to explosive confrontation. She felt emotionally drained, lacking a sense of self-worth and relapsing into drug use, numbing herself with cocaine, even though she had been drug and alcohol-free for a year.
The five decisions against Mr. Pontes reveal that he presides over his “empire” with a “demeaning and abusive managerial style”, subjecting his staff to frequent tirades as well as sexual comments, innuendo and solicitations. He has made racist comments to Aboriginal staff and customers and treated them in a demeaning manner. The Court accepted that Mr. Pontes' conduct showed a “pattern of practice”.
But what is the remedy here? The Court called Mr. Pontes a “repeat offender” and noted that he has been ordered previously to cease and desist, sanctioned with costs for unreasonable and vexatious behaviour, and ordered to post anti-discrimination policies at Northwoods. The Court said: “Mr. Pontes can be presumed to possess full knowledge of what constitutes unacceptable conduct under the Code”. In the case of X, the Court made the maximum allowable award, which at the time was $10,000, for injury to dignity or wilful and reckless discrimination. The Court also awarded 15 months of lost wages to Ms. X, holding John Pontes responsible for her relapse into drug use.
But the total damages awarded against Mr. Pontes were about $44,000. Although in Saskatchewan some commentators called this a “giant award”, in fact, this is remarkably little, considering Mr. Pontes egregious, repetitive, and harmful conduct. One reason why the award is small is because the women who work for John Pontes don't earn much, and 15 months' worth of wages does not amount to a lot. This means that awards for injury to dignity need to be ample enough to balance the fact that women who are poorly paid to start with can never elicit big enough wage compensation awards to make an employer feel the pinch.
Human rights legislation is designed to be remedial not punitive. But remedial does not mean just a band-aid for the individual in question, it means preventing the same discrimination from occurring again. So far, in the case of John Pontes, human rights law has not been successful in being preventive. Increasing the maximum allowable award to $20,000 for injury to dignity is a step but it is not enough.
In the Ontario Human Rights Code there is no cap on the amount the Human Rights Tribunal can award for injury to dignity. That is appropriate, since cases vary, as do appropriate remedies. It should be possible to make an award against an intransigent respondent that is large enough to have some likelihood of preventing further discriminatory harms.
Something new is happening in human rights cases that deal with mental disability. Adjudicators are no longer satisfied that genuine performance problems necessarily justify terminating employees with mental disabilities. Sometimes those genuine performance problems – failure to complete tasks, forgetfulness, displays of irascibility or anger, or absenteeism – are directly related to and caused by the mental illness.
In two recent decisions – MacLeod v. Lambton (County) (No. 2) (CHRR Doc. 14-1830, Human Rights Digest, October 2014) and Gaisiner v. Method Integration (CHRR Doc. 14-2218, p. 3 of this issue) – adjudicators found that discrimination occurred when employers failed to consider whether they could take steps to ameliorate the effects on job performance of bipolar disorder or Attention Deficit Hyperactivity Disorder (“ADHD”).
Lambton County employed Ian MacLeod, who suffers from bipolar disorder, as the manager of Emergency Medical Services. He had no performance problems until several years after he was hired. At that time, a change in his medication made the symptoms of his bipolar disorder more prominent and his behaviour at work became erratic, impulsive and sometimes aggressive.
Mr. MacLeod left work for a time, but the adjudicator found that when he tried to return to work his employer had already decided never to return him to his managerial duties. The employer concluded that Mr. MacLeod had engaged in willful misconduct, failing to consider that his conduct was caused by his illness and could be controlled with appropriate medical treatment.
The adjudicator agreed that his disability-related behaviour was harmful, but did not agree that that was the end of the matter. What steps could be taken in the workplace to recognize and ameliorate the symptoms of the disorder? That should be considered, but never was.
In a similar case, Method Integration hired Ronen Gaisiner as a specialist to advise clients on how to customize the company's management software to fit their specific needs. Soon after he began work his supervisors complained that he did not seem to listen to their instructions and went ahead and did things his own way. He had trouble helping customers to solve problems and missed steps when he gave advice.
When these issues were brought to his attention, Mr. Gaisiner disclosed that he had recently been diagnosed with ADHD and believed that this was at the heart of his performance problems. But his employment was terminated. And some of his supervisors continued to believe that he had disregarded their instructions, when the evidence showed it was more likely that he had forgotten or failed to absorb them because of his ADHD.
The adjudicator asked: was Mr. Gaisiner's disability a factor in his performance issues and could he have done the job if he had been appropriately accommodated? Because the employer did not ask those questions, it failed in its duty to accommodate.
These cases demonstrate that for an employer to show that an employee has genuine performance problems is not enough when mental disability may be a factor. Employers have become more sophisticated about accommodating physical disabilities. Adjudicators are telling us it is time for employers to become more sophisticated about accommodating mental disabilities.
British Columbia is the only province in Canada that does not have a Human Rights Commission. That makes us the weakest province when it comes to fostering human rights awareness and preventing discrimination.
Currently BC only has a Human Rights Tribunal, which mediates and adjudicates complaints about discrimination after it has occurred. The Tribunal does its job well. But the onus to identify and report human rights violations rests on individual British Columbians, who must know their rights, navigate the complaints process, and handle the risk of failure. We know that the complaints that get to the Tribunal are only the 'tip of the iceberg', and that many of the tougher, more systemic issues are not resolved through individual complaints.
For example, troubling evidence has come to light of abusive treatment of temporary foreign workers and recent immigrants in the food service and tree-planting industries. Workers have been subjected to intimidation and sexual and racial harassment, and coerced into using over-crowded and inadequate accommodation provided by the employer. These workers are too vulnerable and face too many obstacles – including fear, financial need, lack of English fluency and isolation – to deal with this discrimination on their own. A Human Rights Commission – if we had one – could investigate, issue public guidelines that would provide information, education and protection to both workers and employers, and monitor the situation.
Recent events have also heightened our awareness of the prevalence of sexual harassment and violence against women. Our institutions – even sophisticated ones like the University of British Columbia (e.g. rape chants and campus sexual assaults) and the CBC (Jian Gomeshi) – have yet to institute adequate practices and protocols that can prevent discrimination against women, and respond effectively when it occurs. Because women often do not trust the police to help them, most do not report sexual assaults. Again, a Human Rights Commission – if we had one – could develop standards, protocols and supports for employers and key service providers like the police.
The accommodation of people with mental health issues, and of workers who are also caring for children, parents, or a disabled family member, is an emerging part of human rights law. A Human Rights Commission – if we had one – could provide education, information, and advice, so that complaints could be avoided. Most employers, service providers and landlords want to comply with human rights law. But right now, we provide little help or encouragement.
Without a Commission, BC has no public institution that can take steps to prevent discrimination, educate the public, initiate inquiries on broad systemic issues, develop guidelines, and promote human rights compliance. We do not have the institutional machinery necessary to make good on the stated purpose of BC's Human Rights Code – which includes to “identify and eliminate persistent patterns of inequality” and to “prevent discrimination”.
Despite its importance, BC's human rights system has had a volatile history. A Commission was first formed in 1973, disbanded in 1984, later re-instituted, but disbanded again in 2002. Now even the truncated human rights system we have left appears to be under review by the provincial government, and may be hollowed out even further by funding cuts for advice and assistance to people who take complaints to the Tribunal.
We should not be playing 'political football' with the human rights system. Governments need to be committed guarantors of human rights and supporters of strong, stable human rights systems. That's what British Columbia needs now – adequate resources for advice and legal representation, and a new independent Commission appointed by the Legislature that provides British Columbians with real tools to prevent discrimination.
Gwen Brodsky and Shelagh Day are co-authors of Strengthening Human Rights: Why British Columbia Needs a Human Rights Commission, published by the Poverty and Human Rights Centre and the Canadian Centre for Policy Alternatives (https://www.policyalternatives.ca/publications/reports/strengthening-human-rights). This column first appeared in The Vancouver Sun, December 10, 2014.
How embarrassing that the House of Commons has no procedure in place to deal with sexual harassment by Members of Parliament. Parliament is our most important democratic forum. It is also a workplace where the people of Canada are the employer. Historically, it was peopled by men only, and it is still heavily male-dominated. Only 25 percent of Canada's MPs are women, and Canada ranks 55th in the world on representation of women in political office. Women have not had a chance yet to make the House of Commons a place of equality.
The House of Commons has distinctive conditions of work. Members work long hours, interactions can be intense and charged, socializing after hours is part of the job, and many are away from home. Given this history and institutional culture, no one can be surprised at the recent allegations that two male MPs sexually harassed two female MPs. What we can be dismayed about is that Parliament, unlike every other federal workplace that Parliament makes laws for, has no established, known procedure for MPs to use when sexual harassment occurs. Its uniqueness as a workplace is no excuse. In this case, the leaders of the two parties to which the MPs belong have tried, in different ways, to take some steps – either to protect the women or to signal to the men that sexual harassment is unacceptable. Now the leaders are at odds, each accusing the other of going about it the wrong way. Nobody needs this.
The Honourable Andrew Scheer, the Speaker of the House, in a statement from his office said he has "directed the House administration to make available all internal resources to the individuals involved”, and has asked the Board of Internal Economy to meet “at the earliest available opportunity” (CBC News, November 6, 2014).
But MPs may not find this reassuring. Most internal procedures that employers and unions establish to deal with allegations of sexual harassment involve the almost immediate appointment of a third party investigator, someone independent, from outside the workplace, who has expertise. The Board of Internal Economy is currently composed of the Speaker, three Conservative MPs, two NDP MPs and one Liberal MP. We do not know if there are any women on the Board of Internal Economy, and it is not universally respected by Parliamentarians. The NDP has sued the Board of Internal Economy because of a decision requiring the NDP to pay the cost of some mailings that are usually free for MPs and Thomas Mulcair, the leader of the NDP, has publicly called it a “kangaroo court” (CBC News, July 10, 2014).
Since, as in this recent instance, sexual harassment in Parliament will often occur between women and men from different political parties, an independent procedure needs to be, and be seen to be, entirely beyond the reach of any partisan political interests. The Board of Internal Economy does not qualify.
It seems most appropriate in this highly politicized moment for the Board of Internal Economy or the Minister of Justice to ask the Canadian Human Rights Commission for advice about an appropriate, permanent and independent procedure. Section 27 of the Canadian Human Rights Act gives the Commission the authority to provide advice on human rights issues and report to Parliament, if that is appropriate. The Commission has the experience of administering the sexual harassment provisions of the Act in federal workplaces since 1983. It is well-situated to provide expert advice on the elements of an adequate procedure including (1) immediate access to confidential expert advice that triggers no action; (2) investigation and mediation services that are as confidential as possible; and (3) an adjudicative process if there is no mediated resolution.
It would be a relief to see Parliamentarians able to set aside partisanship and get solid advice from their Human Rights Commission about establishing a procedure they, and we, can all feel reassured by.
The decisions on family status are beginning to pile up. A ruling from the Alberta Human Rights Tribunal (CHRR Doc. 14-3069) is the latest, and it demonstrates that employers apparently have not yet woken up to their obligations to accommodate women workers who have childcare responsibilities.
Leah Clark was a nursing instructor at Bow Valley College. She went on sick leave and then maternity leave in 2010, delivered a premature baby, and was scheduled to return to work at the beginning of February 2011. Without informing her of the change, the College scheduled her return to work for January 2, 2011, a month early, and then deemed her to have abandoned her job when she did not report for work. Ms. Clark had informed the College that she tried to arrange childcare for January, but had been unsuccessful, and had no options for childcare until February. Even though Ms. Clark had vacation leave owing that she was willing to take to cover the absence, the College terminated her employment.
The Tribunal found that Ms. Clark faced a number of challenges. She was the primary breadwinner and primary caretaker in her family. Her husband had a part‑time job, and the family needed his income, as well as hers. They could not afford to have him quit his job to provide childcare for one month. In addition, Ms. Clark lived in a small community, had an early work start before most daycare centres opened, and had legitimate health concerns about her prematurely‑born child. The Tribunal found that she had a reasonable preference for the daycare she had already arranged.
This is a very common pattern of constraints and concerns for working mothers, so it seems like a good time for a co-ordinated effort by human rights commissions in all provinces and territories to educate employers about their obligations to accommodate childcare responsibilities. It’s time to prevent more job losses, like Leah Clark’s, that are due to employer ignorance of significant developments in this area of human rights law. The commissions can do essential preventative work to stop violations of women’s employment rights before they happen and to help employers to stay up to date on the law as it evolves.
Now that the law on family status discrimination has been clarified, human rights commissions could also help women in Canada by taking up the issue of childcare policy with governments. Canada, as a nation, is far behind its counterparts in providing accessible, affordable publicly-funded childcare. As Martha Friendly, one of Canada’s leading childcare experts, writes on The Broadbent Blog, access to adequate childcare is a basic equality issue for women. Friendly says: “Most mothers cannot afford to, or choose not to, stay home, but without access to good childcare, they may be forced into lower wage jobs or part time work with little prospects for benefits or a pension. Access to reliable childcare makes it more possible for low income or sole support parents (who are often young women) to take advantage of opportunities for advancement. Childcare has been, and still is, a key women's issue, and is fundamental to any agenda for women’s equality”.
Human rights commissions in Canada have the responsibility to promote human rights, and can report to governments with recommendations regarding ways to advance equality and eliminate discrimination. This is a good moment for commissions to take up childcare as a human rights issue, requiring accommodation from employers and policy change from governments.
Here's an idea: as a government, you could have your lawyers spend three years trying to stop the Human Rights Tribunal from hearing a complaint from a prisoner because it was filed out of time. And, at the same time, you could try to ensure that, if the complaint was accepted for hearing, it was framed so narrowly that any remedy would have as little effect as possible. That's what the Solicitor General of British Columbia did in British Columbia (Public Safety and Solicitor General) v. Mzite (CHRR Doc. 14-3052).
The BC Code has a six month limitation period for filing a complaint. But the Tribunal has the authority to accept a late complaint if it is in the public interest to do so. Charles Mzite filed his complaint 19 months late. Mzite was incarcerated at the Vancouver Island Regional Correctional Centre (“VIRCC”) from September 2007 to April 2009. He alleged that during this time he was discriminated against on the basis of disability because he was not provided with consistent access to the antiretroviral medication he needed for treatment of his HIV.
The BC Human Rights Tribunal (74 C.H.R.R. D/210) decided that it was in the public interest to accept Mzite's complaint. There were good reasons for the delay. Mzite was fearful about filing a complaint while he was in prison because he was totally dependent on prison staff to provide him with his medication, as well as other necessities of life. Also, his status as a prisoner affected his access to legal services.
The fear and constraints Mzite experienced are realities of prison life; the Solicitor General can be presumed to know this. Nonetheless, the Solicitor General argued, up to the B.C. Court of Appeal, that this complaint should not be heard on its merits.
The Solicitor General also argued that the Tribunal went astray when it accepted this complaint, not just because the conditions of prison life were no excuse for the late filing, but also because the Tribunal decided that it was in the public interest to hear it because it raised systemic issues. The Tribunal wrote (at para. 56):
Mr. Mzite's complaint raises a novel issue by a uniquely positioned and very vulnerable individual, that is, a prisoner who is HIV-positive and reliant on VIRCC staff for medication. I agree that this complaint offers the Tribunal a rare opportunity to address this novel and serious allegation. The systemic component of Mr. Mzite's complaint alleges that there are currently other prisoners in the custody of…the Ministry who face an interruption in their access to medication. In my view, the individual and the systemic allegations in this complaint raise an issue that, if proven, could advance the purposes of the Code, in particular…identifying and eliminating persistent patterns of inequality associated with discrimination prohibited by the Code. I consider these factors exceptional and …they weigh strongly in favour of the public interest.
The Solicitor General offered no evidence to demonstrate that policies had changed, and that the issue of uninterrupted access to antiretroviral medicines was now moot in provincial prisons. The Court of Appeal ruled that it was not an error for the Tribunal to take into account that inquiring into systemic problems could be in the public interest.
This seems obvious. If there is a problem in BC's jails about discriminatory treatment of persons with HIV, why would the Solicitor General argue for resolving this problem one disabled prisoner at a time. Surely it is in the public interest, including the interest in responsible expenditure of public resources, to inquire into allegations of systemic discrimination in any public service in a timely and effective way.
In an adjudicatory process that turned on how best to serve the public interest, the Solicitor General was off-side. It was not in the public interest for the government to attempt to defeat the purposes of its own legislation, which include ensuring that the most vulnerable members of the community can use their rights, and that systemic discrimination is eliminated.
On the same day, the Federal Court of Appeal released its decisions in Johnstone (Canada (Attorney General) v. Johnstone, CHRR Doc. 14-3045) and Seeley (Canadian National Railway Co. v. Seeley, CHRR Doc. 14-3054), consolidating new law on the accommodation of childcare responsibilities when they conflict with work rules.
Fiona Ann Johnstone and Denise Seeley both worked for federal 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 the Canadian National Railway Co. (“CN”). 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 (“CBSA”) offered her only part-time hours.
CN and the CBSA were resistant employers. They argued strenuously, up to the Federal Court of Appeal, that the prohibition against discrimination on the ground of family status does not require them to accommodate the child care responsibilities of their workers. CN had an unwritten policy that it would accommodate religious beliefs and medical requirements, but not child care responsibilities. Before the Tribunal and the courts, CN argued that Denise Seeley wanted her employer to accommodate her “personal choices” about where to live and how to take care of her children and human rights legislation did not apply.
The CBSA refused to accommodate Johnstone, despite a Tribunal ruling in a virtually identical case twenty years earlier (Brown v. M.N.R., Customs and Excise, 19 C.H.R.R. D/39) that directed the CBSA's predecessor agency to accommodate the child care responsibilities of a customs inspector. Because of the 20-year long resistance the Federal Court of Appeal upheld the Tribunal's award of damages to Johnstone for willful and reckless discrimination.
The Federal Court of Appeal rejected CN and CBSA arguments. It set out the requirements for establishing a prima facie case of discrimination based on family status: (1) that the child is under the supervision of the complainant; (2) that the child care obligation at issue engages the complainant's legal responsibility as a parent, as opposed to personal choice; (3) that the complainant has made reasonable efforts to meet her childcare obligations through alternative solutions; and (4) that the challenged workplace rule interferes in a manner that is more than trivial with the fulfillment of the childcare obligation.
The Federal Court of Appeal is clear that human rights protection does not extend to personal family choices, such as “participation of children in dance classes, sports events like hockey tournaments and other similar voluntary activities.” However, for both Ms. Johnstone and Ms. Seeley, the Court found, this was not the issue. For both women, the issue was their ability to fulfill their basic obligation to ensure that, if they were at work, their children were adequately cared for.
Women in Canada owe a big debt to Fiona Ann Johnstone and Denise Seeley, to the Canadian Human Rights Commission, and to the lawyers who have represented Johnstone and Seeley. This struggle has been long and slow. It is a big victory for women in the workplace – precisely because, for women, the conflict between work requirements and childcare responsibilities is a key equality issue. Women have been, and continue to be, penalized because they are the primary caregivers for children and other family members. This is a real step forward.
The current anti-human rights mantra makes two claims: (1) freedom of expression is the most fundamental right and should trump the right to freedom from discrimination; and (2) human rights commissions and tribunals are biased, junior, incompetent agencies ‑ only courts should have the task of addressing and adjudicating human rights issues. Unfortunately, these flawed arguments have leverage with some governments. They need to be countered repeatedly, and with many voices.
The freedom of expression claim got a bucket of cold water recently from the Federal Court of Appeal. In what may be the last word on the now repealed hate speech provision of the Canadian Human Rights Act, the Court of Appeal ruled that s. 13 was constitutional and not an infringement on the Charter right to freedom of expression.
This ruling, full of irony as it is, comes about because complaints filed before the repeal are still making their way through the courts. In 2009, in Warman v. Lemire (No. 18) (68 C.H.R.R. D/205), the Canadian Human Rights Tribunal ruled that s. 13 was unconstitutional because a penalty provision added in 1998 permitted a fine of $10,000 to be levied against a respondent. According to the Tribunal, this changed the character of s.13 from a remedial provision to a punitive one, rendering the section unconstitutional because it was no longer a minimal impairment of the right to freedom of expression.
The Federal Court reviewing the Tribunal decision, decided in 2012 (76 C.H.R.R. D/308) that the Tribunal had erred by finding s. 13 unconstitutional, because the penalty provisions could be severed, and the remedial character of the section could be saved.
Just a few weeks ago, the Federal Court of Appeal rejected (see CHRR Doc. 14-3006 at p. 11 of this issue) both the Tribunal and the lower court decision. Following the Supreme Court of Canada's decision in Saskatchewan (Human Rights Comm.) v. Whatcott (76 C.H.R.R. D/1), the Court of Appeal found that hate speech is an extreme form of expression that fosters a climate in which unlawful discrimination can flourish. The penalty provisions fit the remedial objectives of the Canadian Human Rights Act, the Court found, because they were designed to induce compliance with the law and deter future breaches. The penalty provisions were introduced to “plug a gap”, because otherwise the Act only permitted compensatory awards to individuals. Without the penalty provisions, violations of s. 13 would carry no financial liability because hate speech typically targets vulnerable groups as a whole, rather than individual members. The penalty provisions were particularly important, the Federal Court of Appeal ruled, for deterring those who repeatedly engaged in hate speech, as s. 13 respondents too often do.
Brian Storseth, whose private member's bill, with the support of the Harper Conservatives, resulted in the repeal of s. 13, claimed that freedom of expression is our most fundamental right, and that s. 13 violated that right. Even with the penalty provisions, this is not so, says the Federal Court of Appeal.
Although we will not get s. 13 back any time soon, it will be important to remember that, according to our courts, there was nothing wrong with it. Mr. Storseth's claims were false.
The Canadian Human Rights Tribunal has taken a step forward. Diverging from its decisions in Matson v. Canada (Indian Affairs and Northern Development) (No. 4) (CHRR Doc. 13-0362) and Andrews v. Canada (Indian Affairs and Northern Development) (No. 2) (CHRR Doc. 13-3127) it decided in Beattie v. Canada (Aboriginal Affairs and Northern Development) (CHRR Doc. 14-3001) that the Canadian Human Rights Act (“CHRA”) can be applied to the status registration provisions of the Indian Act. This case deals with custom adoption.
The criteria for status eligibility are set out in the Indian Act. However, entitlement to registration is not automatic, but is determined by the Registrar. The criteria are based on lineage, but it has also long been recognized that status may be transmitted through legal adoption.
The Canadian Human Rights Tribunal's task in Beattie was to decide whether the Registrar had discriminated on the basis of family status in its determination of the eligibility for status of Joyce Beattie, and her children and grandchildren. Did the Registrar discriminate by failing to recognize that Ms. Beattie had been adopted, by custom, by status Indian parents? Ms. Beattie claimed that her entitlement to registration flowed from her custom adoptive parents.
Ms. Beattie was custom adopted four days after her birth by Norbert Otto Natsie and Bernadette Natsie; her natural mother could not care for her because of illness. Ms. Beattie's custom adoption was officially recognized by the Supreme Court of the Northwest Territories. If her eligibility for status was based on her natural parents' lineage, she could not transmit status to her grandchildren. But, if her eligibility was based on her custom adoptive parents' lineage, she could.
The Tribunal ruled that the Registrar discriminated against Ms. Beattie based on family status when it refused to determine her eligibility based on that of her custom adoptive parents. The Tribunal held that an Aboriginal certified custom adoptee is entitled to the same treatment under the law as a legal adoptee. This is an important decision, as it will affect the ability of other Aboriginal parents to transmit status to a child they have adopted by custom.
But there is another aspect of this decision that is noteworthy. The Tribunal reversed itself, to decide that determining eligibility for Indian status is a public service, despite its earlier rulings to the contrary. As recently as September 2013 in Andrews, the Tribunal agreed with the Government of Canada that decisions made pursuant to the Indian Act regarding eligibility for Indian status could not be reviewed for compatibility with the CHRA because there is no “public service” involved. The Tribunal in Andrews found that the challenge was to the Indian Act itself and that Parliamentary law-making is not a service within the meaning of the CHRA.
But if determining eligibility is indeed a service, as the Tribunal held in Beattie, the difference between Beattie and Andrews is a fine one. In both cases, the Registrar was asked to apply the CHRA in order to avoid discrimination that would otherwise be caused by the Indian Act. The only difference is that in Beattie the term “child” could be given a compatible interpretation, whereas in Andrews, the Registrar was asked to render a discriminatory provision inoperable.
Since the Tribunal now says that there is a service, and since human rights legislation has primacy over other inconsistent laws, the CHRA should take precedence over the status registration provisions of the Indian Act, which continue to discriminate.
Just what did repealing s. 67 of the Canadian Human Rights Act mean?
From the time the Canadian Human Rights Act was introduced in 1977 until 2008 when s. 67 was finally repealed, this section barred Aboriginal people from making complaints of discrimination about decisions made by the federal government or Band Councils under the Indian Act. Section 67 said: "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act".
In its backgrounder on the repeal of s. 67, the Government of Canada explains that s. 67 was adopted as a temporary measure because, without it, certain provisions of the Indian Act could have been found discriminatory, and discussions about reform of the Indian Act were underway at the time. (http://www.aadnc-aandc.gc.ca/aiarch/mr/nr/s-d2006/02831bk-eng.asp)
While the backgrounder does not comment on why it took so long to repeal this temporary measure, it does go on to say: “For the first time in thirty years, individuals will be able to file a complaint of discrimination under the Canadian Human Rights Act for actions taken or decisions made pursuant to the Indian Act.” (emphasis added).
Is it not contradictory then that the Government of Canada's lawyers appear to be on a concerted campaign to ensure that Aboriginal people cannot use the Canadian Human Rights Act to challenge decisions made pursuant to the Indian Act.
In a recent Tribunal decision, Andrews v. Canada (Indian and Northern Affairs) (CHRR Doc. 13-3127), the Government was once more successful in arguing that, despite the repeal of s. 67, decisions made pursuant to the Indian Act regarding eligibility for Indian status cannot be dealt with under the Canadian Human Rights Act because there is no ‘public service’ involved. The Government's lawyers say that the challenge is to the Indian Act itself, and such a challenge can only be made under the Canadian Charter of Rights and Freedoms. Parliamentary law-making, they argue, is not a service within the meaning of the Canadian Human Rights Act.
There are a number of ironies here. First, it is formalistic to reduce the service in issue to Parliamentary law-making. Conferring registered Indian status — and the benefits associated with it — fall within the common sense understanding of what constitutes a ‘service’. In many decisions under human rights legislation, tribunals and courts have found that if the effect of applying a law is the discriminatory denial of a benefit, there is discrimination in a service. Tranchemontagne v. Ontario (Dir., Disability Support Program) (56 C.H.R.R. D/1), a decision of the Ontario Court of Appeal, is an excellent example.
Secondly, if the Government thinks that Aboriginal people should use the Charter to bring challenges to the discrimination in the registration provisions of the Indian Act, why did it cancel the Court Challenges Programme, which provided the only practical access to the use of constitutional rights for anyone except the wealthiest Canadians? Why did it instead repeal s. 67 of the Canadian Human Rights Act and hold out the statutory human rights forum as providing easier access to justice for Aboriginal people who need to bring forward just such issues?
The Canadian Human Rights Tribunal's decision that Mr. Andrews cannot challenge denial of a benefit because the denial is grounded in provisions of the law relies on the 2012 federal court decision in P.S.A.C. v. Canada (Revenue Agency) ("Murphy") (CHRR Doc. 12-3139). But Murphy, and now Andrews, stand in contradiction to a long line of jurisprudence that has considered the quasi-constitutional nature of human rights legislation and its primacy over other laws, and found that provisions in other laws must give way when they cause discrimination.
The Government of Canada's lawyers argue that they do not have the same panoply of defences available that they would have under the Charter. Under the Canadian Human Rights Act they can only defend a discriminatory provision by claiming that it would cause undue hardship to change it, because of the health, safety or cost implications. Interestingly, when the Government of Canada drafted the legislation repealing s. 67, it did not take the opportunity to insert special defences for discriminatory provisions in the Indian Act.
But now, quietly and after the fact, the Government of Canada's lawyers are working at carving out an exception to Canada's important jurisprudence on the primacy of human rights legislation on the new terrain that is exposed by the repeal of s. 67.
Sadly, this now looks more like politics than legal reasoning. The Government of Canada is working to shrink the rights of Aboriginal people after it has so publicly congratulated itself for finally permitting them to use them. The Canadian Human Rights Tribunal should not be allowing them to do it.