What Was Said

Significant quotes from recent decisions.

“No general rule may be applied to what, depending on the circumstances, may be an ‘advantage’ or a ‘disadvantage'.  Each disabled person's circumstances must, in my opinion, be assessed individually and then a decision made whether the person has had 'meaningful access' to services as mandated by the Supreme Court of Canada in Moore v. British Columbia (Education) ... 'Meaningful access' is, in my opinion, the fundamental principle which should guide the analysis of discrimination against the disabled in the provision of services.”

Human Rights Digest 20-3, April 2019

“In determining how to exercise its discretion, the Tribunal had to consider whether, based on the facts Mr. Suen alleged, it could be found that he had been discriminated against on the basis of his family status.  Put in terms of Campbell River, in deciding Envirocon's application, the Tribunal had to determine whether, on the basis of those alleged facts, it could be found that: (i) there had been a change in a term or condition of Mr. Suen's employment; and (ii) such a change resulted in “a serious interference with a substantial parental or other family duty of obligation” …

"With respect to s. 27(1) of the Code, the Tribunal concluded that the facts alleged on the face of the complaint … ‘could be found to constitute serious interference with a substantial parental or other family duty of obligation': paras. 37−38.  With respect to s. 27(1)(c) of the Code, the Tribunal concluded requiring Mr. Suen to be away for that period could be found to be ‘something more' than the usual work/family tensions that every parent faces at some time or another': para. 55.  In doing so, the Tribunal rejected Envirocon's argument that the facts alleged by Mr. Suen could, at best, establish a conflict between a work requirement and a parental preference.  In advancing that position, Envirocon noted Mr. Suen had not alleged his child required special care or that he alone was capable of caring for the child: para. 52.

"In my view, the facts alleged by Mr. Suen are not capable of satisfying the second step of the Campbell River test.  Those facts are only capable of establishing the undisputed fact that he is a parent.  While Mr. Suen's desire to remain close to home to be with his child and to assist his wife in caring for the child outside of his normal weekday working hours and on weekends is understandable and commendable, he is no different than the vast majority of parents.  There are many parents who are required to be away from home for extended periods for work-related reasons who continue to meet their obligations to their children.  Nothing in Mr. Suen's complaint or affidavit suggests his child would not be well cared for in his absence.”

 

Human Rights Digest 20-2, February/March 2019

“… the respondent disregarded and showed indifference to the consequences of its actions. As such, it engaged in the discriminatory practice against the complainant recklessly.

However, the evidence did not establish that the respondent's recklessness rose to the level of CBSA's conduct in Johnstone [76 C.H.R.R. D/53], where that party had ignored a previous Tribunal order regarding similar issues of discrimination.”

 

Human Rights Digest 20-1, January 2019

“… Ms. Wakeham is an experienced litigant.  She has advanced her claims in the courts through litigation regarding her motor vehicle accidents.  She has filed worker compensation claims; she has brought grievances under her collective agreement.  Then she brought this human rights complaint.  It may not have been the best means of vindicating her claims.  And if so, surely it could have been conducted more expeditiously and inexpensively than it was.  A casual acquaintance with the news tells us of the serious human rights issues confronting Nova Scotians.  Unlimited resources are not available to rectify these wrongs.  Careful expenditure of scarce public resources would suggest a better solution than the process pursued in this case.”

 

Human Rights Digest 19-8, November/December 2018

“The evidence shows that the applicant was doing well at school, until she experienced anaphylaxis in May 2014. Thereafter there were repeated acts of discrimination and harassment such as the long delay in posting signs, the failure to ensure that students understood the gravity of the applicant's allergy to fish and the failure on the part of Ms. Round [the London campus Director] to put a stop to the serious harassment and bullying of the applicant by other students. The threats by students to purposely put allergens on the applicant's work station was exceptionally egregious in light of the life-threatening risk of her allergy and, required firm action. Instead the applicant was dismissed by Ms. Round as a 'drama queen'.”

 

Human Rights Digest 19-7, October 2018

“… I have found in this decision … that the 2005 agreement remains connected to the foundational principles in such a way that there is insufficient evidence to find a breach of the Code. The parties are at liberty to negotiate a new compensation methodology which incorporates, among other things, the developments in the midwifery profession, the ongoing demand for services, the government’s changing health care priorities, economic and labour market forces and the research which has amassed since 1993 on the effects of gender-based discrimination in compensation. However, what has happened in this case is that the MOH has unilaterally withdrawn from the 1993 principles and methodology, leaving the compensation of midwives exposed to the well-known effects of gender discrimination on women’s compensation.”

 

Human Rights Digest 19-6, September 2018

“… the issue on appeal has, at times, been characterized by the parties and the courts below as being whether the Tribunal has the “jurisdiction” to consider direct attacks to legislation or whether the courts are the better forum to ascertain the validity of legislation. However, distilled to its essentials, the question before the Tribunal was whether legislative entitlements under the Indian Act fell within the definition of a service under the CHRA. As such, the Tribunal was determining whether the complaints concerned a discriminatory practice as defined by the CHRA.

Human Rights Digest 19-5, August 2018

“The LSBC's decision also reasonably balanced the severity of the interference with the Charter protection against the benefits to its statutory objectives. To begin, the LSBC's decision did not limit religious freedom to a significant extent. The LSBC did not deny approval to TWU's proposed law school in the abstract; rather, it denied a specific proposal that included the mandatory Covenant. Indeed, when the LSBC asked TWU whether it would 'consider' amendments to its Covenant, TWU expressed no willingness to compromise on the mandatory nature of the Covenant. The decision therefore only prevents TWU's community members from attending an approved law school at TWU that is governed by a mandatory covenant.”

Human Rights Digest 19-4, July 2018

“Before the Tribunal, the complainant did not seek to provide an explanation of the connection between street homelessness and Aboriginal background or between physical and mental disabilities and homelessness. Rather, it simply relied on statistical evidence to show that Aboriginal people and those with disabilities were more prevalent among the street homeless than in the general population. Intuitively, the association between homelessness on the one hand and Aboriginal heritage or disability on the other, does not appear to be mere coincidence. It is, however, a complex association. In the absence of evidence or any articulated theory, the Tribunal found the statistical correlations to be insufficient to demonstrate that prohibited grounds of discrimination were ‘a factor’ for the purposes of establishing prima facie discrimination.”

 

Human Rights Digest 19-3, May/June 2018

“The building of a Nation-to-Nation relationship cannot be more significant than by stopping the unnecessary removal of Indigenous children from their respective Nations. Reforming the practice of removing children to shift it to a practice of keeping children in their homes and Nations will create a channel of reconciliation. This is the true spirit of reconciliation. This is the goal. This is hope. This is love in action. This is justice.”

 

Human Rights Digest 19-2, March/April 2018
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