View Point

Commentary on new developments in human rights law published in the Human Rights Digest newsletter.

The National Inquiry into Missing and Murdered Indigenous Women and Girls found that “the significant, persistent, and deliberate pattern of systemic racial and gendered human rights … violations … perpetuated historically and maintained today by the Canadian state … is the cause of the disappearances, murders, and violence …” The Commissioners call for an absolute paradigm shift, and the dismantling of colonialism within Canadian society and its institutions.

The National Inquiry also found that there is no accessible and reliable mechanism within the Canadian state for Indigenous women to seek recourse and remedies for the violations of their domestic and international human rights. “The Canadian legal system fails to hold the state and state actors accountable for their failure to meet domestic and international human rights … obligations”.

This is shocking, and true. Indigenous women and girls encounter the entwined forces of systemic racism and sexism when dealing with health providers, child welfare officials, and police, just to name some examples, and this discrimination has not been grappled with, or remedied effectively, by Canada's legal system, despite our reputation as a rights-embracing society.

As institutions designed to hold both private and state actors accountable for systemic discrimination, human rights commissions and tribunals need to think deeply about what they can do now to make a difference.

There are a couple of reasons why the human rights system has failed Indigenous women. One is the difficulty of dealing with systemic discrimination that they encounter through a complaints-based system that is most comfortable dealing with individual, narrowly framed claims. Perhaps our first real engagement with the kind of systemic discrimination that is defining in the lives of Indigenous people is the First Nations Family and Child Caring Society case (2016 CHRT 2, 83 C.H.R.R. D/207). It is a landmark.

Another is that, because of ingrained misogyny in our human rights system, or because of class-based inaccessibility, or because of fear and distrust that Indigenous women have of government-created “helpers”, human rights commissions and tribunals have not engaged with the human rights violations experienced by Indigenous women and girls: apprehensions of babies at birth; forced sterilizations; sexual abuse of Indigenous girls in foster care; sexual exploitation by police officers; 'unfounding' of rape allegations. These are not being taken up by our human rights system, and yet they are all incidents of race and sex discrimination in services.

What can human rights institutions do to take up the National Inquir's challenge and to respond effectively and responsibly to the National Inquiry's Calls for Justice? Do human rights institutions need to study their own limitations and diagnose what needs to change? Do they need to better educate adjudicators and judges so that they can edge outside their comfort zones when faced with systemic complaints? Do they need to ask law schools to help?

Commissions do have tools they can use immediately. Inquiries, consultations and public education can make a difference. Commissions can use these powers to delve more deeply into how basic public services are delivered to Indigenous women and girls in their region and how violations of Indigenous women's rights occur.  The Ontario Human Rights Commission's work on racial profiling can stand as an example. It has had a big impact on public understanding of racial profiling and its effects, and it has made police forces in Ontario more accountable for their practices, and their interactions with racialized people.

Canada's human rights institutions must be part of stopping the human rights crisis of violence against Indigenous women and girls. But it will take hard, thoughtful, sustained work. Some of that work needs to be introspective and self-critical. All of it needs to be brave, and transformative.

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In a much-anticipated decision in MacLean v. Nova Scotia (Attorney General) (No. 2), the Nova Scotia Human Rights Board of Inquiry was tasked with determining whether the complainants had met the test for prima facie discrimination, in the context of a claim of systemic discrimination on behalf of persons with disabilities in their access to community based, residential supports and services.  Four separate complaints — three by individuals with disabilities and a fourth by the Disability Rights Coalition — were heard jointly in a challenge to decades old policies and practices by the Province.

Many people with disabilities who require residential supports and services in Nova Scotia are faced with a lack of community-based options and long waitlists while over a thousand are warehoused in anachronistic institutions, and still others are actually 'housed' in hospitals. Some people with disabilities in their 40s and 50s, live with ill or aging parents while they wait on years-long waitlists for the offer of a place to live independently.

The three individuals filed their complaints while 'housed' in a locked, acute-care psychiatric hospital. One of them, Beth MacLean, lived there for 16 years before she was transferred to an institution outside Halifax. Everyone involved in her case agreed that all of the complainants could have been supported throughout the relevant periods to live in community.

During the 32 days of evidence, the Board heard from many experts who all testified to how institutionalization does not simply limit the opportunities for growth and development but actually causes a regression in a person's social and physical skills. Indeed, the Provinc's own Deputy Minister of Community Services, in her two days of evidence, freely admitted that institutionalization is not in the best interest of the people they are serving.

Ultimately the Board upheld the complaints from the three individuals while dismissing the Disability Rights Coalition's systemic discrimination complaint.

On the positive side, it is a significant win to have a human rights Board of Inquiry hold that an institutionalization complaint falls within the scope of human rights law and that for people who want to live in community, continued institutionalization is inconsistent with their equality.

In its reasons, the Board made strong evidentiary findings concerning the disadvantage experienced by the three individual complainants, including that Beth MacLean's appalling experience at the hands of the Province was ‘soul-destroying'. Reviewing the evidence of years of requests and advocacy seeking community-based placements (for all three individual complainants), the Board found: “The Province met their pleas with an indifference that really, after time, becomes contempt”.

The finding of discrimination against the Province based on the unnecessary institutionalization of three individuals establishes an important precedent concerning the obligation on government to consider the discriminatory impacts of decisions to unnecessary institutionalize persons with disabilities.

However, on the systemic side, and despite what appears to have been a mountain of evidence, the Board's decision is profoundly disappointing. The Board of Inquiry was incapable of grasping the clear systemic discrimination foundation of all of the complaints.

For example, the Board was dismissive of the expert evidence of noted human rights scholar and activist, Catherine Frazee, whose expert report and testimony explained the underpinnings and operation of the well-recognized concept of ableism. Frazee's description of ableism and its operation calls to mind the ways in which, for instance, systemic racism and sexism work. Indeed, in Meiorin (British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U. (1999), 35 C.H.R.R. D/257), the Supreme Court of Canada approved of a passage from the work of Gwen Brodsky and Shelagh Day  who refer to “the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others” (“The Duty to Accommodate: Who Will Benefit?” (1996) 75 Can. Bar. Rev. 433 at 462).

Accordingly, the Board's observation that the Province's witnesses involved in either the complainants' care or the implementation of its programs “gave every appearance to me of the utmost respect and the most positive attitudes towards the disabled” entirely misses the point of systemic discrimination.

At bottom, the Board's flawed discrimination analysis focused on how people eligible for the Province's disability supports program were treated in comparison to other persons with disabilities.  This formal equality approach left the Board unable to see the dramatic and glaring substantive inequalities experienced at virtually every turn by persons with disabilities who require residential supports and services, when compared to those people — both those with disabilities and those without — who do not require supports and services.  The decision also failed to address the negative impact of institutionalization, and distinguished the U.S. Supreme Court decision in Olmstead v. L.C., 527 U.S. 581 (1999), which found that unnecessary institutionalization of persons with disabilities who both want and are capable of community living, is discriminatory.

For those wondering whether the Board's decision in MacLean would advance the position of persons with disabilities in their struggle for social equality, the result is mixed. The good news, however, is that the Board's decision will not be the final word as the Disability Rights Coalition has appealed the Board's decision to the Nova Scotia Court of Appeal.

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The B.C. Court of Appeal in Environcon Environmental Services, ULC v. Suen, 2019 BCCA 46, CHRR Doc. 19-3004, gave the back of its hand to a human rights complaint based on family status that was filed by a new father. This decision is disturbing because Mr. Suen did not get to have the merits of his complaint heard; it was dismissed on a preliminary application.

Mr. Brian Suen, who was a project manager for Environcon Environmental Services, was fired when, shortly after the birth of his daughter, he refused to accept an assignment that required him to be away from home to work on a project in Manitoba, without interruption or home visits, for eight to 10 weeks. His daughter was born with jaundice. Neither Mr. Suen, nor his wife, has any additional support to help care for their daughter.

Environcon applied to the B.C. Human Rights Tribunal for a preliminary dismissal of this complaint on the grounds that the facts alleged did not contravene the Code, and that the complaint had no prospect of success. But the Tribunal refused to dismiss it (2017 BCHRT 228, CHRR Doc. 17-0226). It found that requiring Mr. Suen to be physically absent from home for eight to 10 weeks when he had a sick infant daughter met the threshold of “a serious interference with a parental obligation or duty”, which is part of the standard for family status discrimination that was set out by the B.C. Court of Appeal in Campbell River in 2004 (Campbell River and North Island Transition Society, 2004 BCCA 260, 50 C.H.R.R. D/140). In Campbell River, the Court of Appeal ruled that “a prima facie case of family status discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee”.

The Tribunal found that, in a full hearing on the merits, a Tribunal might well find that Mr. Suen's need to work in the same city as his daughter was more than mere “parental preference”. The reviewing judge in the B.C. Supreme Court upheld this decision (2018 BCSC 1367, CHRR Doc. 18-3103).

The only question the Court of Appeal addressed was whether the requirement to work in Manitoba resulted in a “serious interference with a substantial parental or other family duty”. The Court decided, based on the facts alleged in Mr. Suen's complaint form and affidavit, that Mr. Suen would not be able to show that the employer's requirement that he be absent for 8 to 10 weeks, was a “serious interference with a substantial duty”. Many parents are required to be away from home for extended periods for work-related reasons, the Court said, and nothing in Mr. Suen's facts suggested that his child would not be well cared for. The Court overturned the Tribunal's decision not to dismiss the complaint.

This is an unfortunate result. Without a full evidentiary hearing, it is not possible to know whether, in all the circumstances, this particular requirement for extended absence from home would have seriously interfered with Mr. Suen's familial obligations, and whether Mr. Suen could not have been accommodated. When human rights law with respect to family status is still evolving, and many families struggle to manage the competing demands of work and family caregiving, a full hearing on this case was warranted.

Further, both the Tribunal in its reasons and Mr. Suen in the B.C. Court of Appeal, asked whether the Court's 2004 definition of what is necessary to establish family status discrimination remains good law. It seems restrictive. Now that B.C. will soon have a new human rights commissioner, this issue is ripe for examination from a policy perspective. How can the law best support an appropriate work/life balance that satisfies the needs of employers and workers with families?

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On January 11, 2019, the United Nations Human Rights Committee issued its decision on the petition of Sharon McIvor. Sharon McIvor claimed that the Indian Act continues to discriminate against First Nations women and their descendants by denying them full s. 6(1)(a) status on the same footing as their male counterparts. This discrimination is old, dating to the introduction of the Indian Act in 1876 when an “Indian” was defined as “a male Indian, the child of a male Indian, or the wife of a male Indian”. There was a one-parent rule for transmission of status, and the one parent was male. First Nations women who married “out” lost their status and could not transmit status to their children.  By contrast, First Nations men who married “out” conferred their status on their wives and on their children.

Amendments to this discriminatory regime in 1985, 2011, and 2017, removed some slivers of the discrimination, but left the core of the sex discrimination intact. The 1985 amendment restored status to First Nations women who lost it by marrying out, and to matrilineal descendants who never had status because their First Nations ancestor was an unmarried woman. But these women and matrilineal descendants were reinstated to a second-class status, 6(1)(c), with less entitlement to transmit status than their male counterparts and patrilineal descendants, who had never lost status and were assigned full 6(1)(a) status. Further amendments in 2011 and 2017 did not dismantle this sex-based hierarchy.

The UN Human Rights Committee held that the sex-based hierarchy between 6(1)(a) and  6(1)(c), introduced by the 1985 Indian Act, and continued by the amendments of 2011 and 2017, violates the right to the equal protection of the law without discrimination based on sex, and violates the equal right of men and women to the enjoyment of  Indigenous culture, guaranteed by the International Covenant on Civil and Political Rights.

The damage that this discrimination has done to First Nations women, their children, and their communities, over decades, is profound. As Joyce Green has written, “From this sexist law flowed a host of negative consequences that have been well documented, including loss of identity, of family proximity, of cultural and political participation, and of access to the meagre services provided through Indian Affairs … Because they were not recognized as 'Indians' many First Nations women and children were exiled to unwelcoming settler communities infused with racism, where they were, ironically, forever marked as ‘Indian'” (“Federal government must put an end to Indigenous sex discrimination”, Regina Leader-Post, Jan. 25, 2019).

As we watch the decades of fall-out, it is not surprising that the Canadian Human Rights Tribunal in its February 21, 2019 decision in the First Nations Family and Child Caring Society case, decided to hold a full hearing on the issue of who is a “First Nations child” for the purposes of implementing Jordan's Principle, and has asked parties to comment on the UN Human Rights Committee's ruling on Sharon McIvor's petition. As the Tribunal notes, some of the First Nations children who are apparently being denied services because they do not have Indian status, may not have status because of the ongoing sex discrimination in the Indian Act.

Nor is it surprising that both the United Nations CEDAW Committee and the Inter-American Commission on Human Rights, in their investigations into the crisis of murders and disappearances of Indigenous women and girls in Canada, found that Indian Act sex discrimination is a root cause of the violence. More than a century of being treated as second class human beings, in law, has generated violence and abuse of First Nations women and girls, both in their own communities and in the broader society.

First Nations women and their descendants have repeatedly challenged this discriminatory treatment. Since the 1970s they have used every legal tool available to them: The Bill of Rights (Lavell; Bedard), statutory human rights law (Matson, CHRR Doc. 18-3035), Charter rights (McIvor, Descheneaux, Gehl) and the United Nations petition system (Lovelace, McIvor, Matson). And, mostly, they have won.

And, repeatedly, Canada has refused to eliminate the core of the discrimination. Each time, it has removed only the particular aspect of discrimination that is made manifest by the latest plaintiffs, but never the fundamental hierarchy. As a result, First Nations women have been forced to spend decades trying to litigate their way to full equality, one family tree at a time.

In the last episode, when in 2017 the Government of Canada amended the Indian Act to respond to the Quebec Superior Court's decision in Descheneaux, the Senate of Canada put up a fight, led by Indigenous Senators, Lillian Dyck and Sandra Lovelace-Nicholas (yes, the same Sandra Lovelace). And, faced with not being able to pass their narrow amendment, the Government agreed to include provisions in Bill S-3 that would have the effect of removing the 6(1)(a) to 6(1)(c) hierarchy finally and completely, but they did not bring these provisions into force. Cabinet can bring them into force by Order in Council, but, to date, has chosen not to do so.

The UN Human Rights Committee took note of the fact that Bill S-3 contains provisions that would cure the discrimination, but since those provisions are not in force, it found that the Indian Act, as amended by Bill S-3, maintains a discriminatory distinction based on sex. The Committee also noted that Canada clearly agrees that the Indian Act is still discriminatory, knows how to fix it, and has not.

So, what can explain the years of refusal by the Government of Canada to implement, for First Nations women, the right to equal protection of the law that it has embraced since the 1970s?

There is no nice answer. The dark and simple answer seems to be that the Government of Canada does not want more “Indians”. Sex discrimination has been an effective tool of assimilation since 1876, defining 'Indians' out of existence through discriminatory treatment of matrilineal descent, and of Indian women, but not Indian men, who “married out”. The sex discrimination has been used to keep small the pool of First Nations people to whom the Government of Canada owes a fiduciary duty, and whose treaty and inherent rights it must recognize.

On December 5, 2017 the Parliamentary Budget Officer released a report estimating that there are 270,000 women and their descendants who would register newly for Indian status if the 6(1)(a) to 6(1)(c) hierarchy was eliminated. That's how effective sex discrimination is; it keeps out 270,000 First Nations women and their descendants.

Cabinet meetings take place on Tuesdays. Because all that is needed is an Order in Council, this means that any Tuesday, Cabinet could eliminate the sex discrimination against First Nations women and their descendants that has been on the law books for almost one and 50 years. It's time.

 

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On the website of the Ontario Human Rights Tribunal there is this important notice:

The Human Rights Tribunal of Ontario (HRTO) is experiencing a shortage of adjudicators (vice chairs and members) which is affecting the HRTO's ability to meet its service standards. As a result, already scheduled mediations and hearings may need to be re-scheduled to a later date. In addition, you may experience a longer than usual number of days before a mediation or hearing. The HRTO continues to be committed to providing fair, effective and timely dispute resolution.

Investigation reveals that eight of 18 full-time members of the Tribunal and eight of 22 part-time members have appointments that are due to expire soon (https://www.pas.gov.on.ca/Home/Agency/445). This means that more than a third of Tribunal members cannot be assigned to hearings because their appointments are likely to expire before they are completed. Competition for these positions was open in the fall and closed October 31, 2018 (http://www.sjto.gov.on.ca/en/latest-news/#hrto). But no new appointments, or re-appointments of existing members, have been made.

One can ascribe this delay to the fact that the Conservatives have only been in power  since the end of June, and it takes a new government time to find its feet. However, given other actions taken by the Conservatives since they came into office, there is reason to worry about what this delay means, and about the obstruction of human rights that it causes.

Since June, the Ford government has:

Directly, or indirectly, these decisions have a negative impact on individuals and groups protected by the Ontario Human Rights Code on the grounds of ethnicity, race, sex, sexual orientation, gender identity, disability, and receipt of social assistance. Ford's does not appear to be a human rights-positive administration. That makes the notice on the Human Rights Tribunal website a special cause for concern.

The Ontario Human Rights Tribunal has a reputation for resolving human rights disputes efficiently and for issuing solid adjudicatory decisions. The Ontario human rights system is looked to by other jurisdictions as a model for reliable process and results. But Canada's more than 50 years of legislated human rights protections has revealed that governments, particularly Conservative, Socred, and BC Liberal governments, sometimes consider their own human rights systems a threat, and want to weaken them, if not abolish them altogether.

Having solid human rights machinery should be accepted as a fundamental necessity of good government for administrations of every political stripe, since it plays a key role in guaranteeing an equal and democratic society. Unfortunately, this is not always the case. BC is a prime example of the politicization of human rights, having survived two eliminations of its human rights commission (1985 and 2002) by Socred and BC Liberal governments, and having had it just restored for the third time by the new NDP government, after a hiatus of 16 years.

It is not likely that the Ford administration will openly dismantle its human rights system, ut there are other ways it can undermine its own watchdogs. Under-funding and delays in appointments are obvious ones. By failing to make timely appointments to the Human Rights Tribunal, causing the Tribunal to notify Ontarians that it cannot provide them with its essential services in a timely manner, the Ford government sets itself on a destructive path. Confidence in the human rights system requires being able to count on timely processing and resolution of human rights complaints. The Ford government should re-appoint existing Tribunal members, or appoint new members, immediately.

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On November 1, the Government of British Columbia tabled legislation that will create a new Human Rights Commissioner, restoring for British Columbians an institution that was wiped out in 2002 by the Campbell Liberals. For 16 years, British Columbia has been the only province in Canada with no human rights commission.

The elimination of the B.C. Human Rights Commission in 2002 was the second time in B.C.'s history that a human rights commission was eliminated. In 1984, the Social Credit government dismissed the Human Rights Commission, fired the staff and closed the regional offices.

In the face of this volatile history, the Government of British Columbia has taken an important and unprecedented step: there will be one Human Rights Commissioner and the Commissioner will be an Officer of the Legislature, with all the related protections for independence that entails. This will make the B.C. Commissioner unique in Canada, the only one that is, in fact, institutionally independent of government.

The fact that B.C. has stepped out on the issue of independence will improve the climate for all human rights commissions. Independence is a key issue for human rights institutions whose job is to hold governments, as well as private actors, accountable for human rights compliance.

The B.C. structure will become similar to that of Ontario. B.C. will retain its direct access, stand-alone adjudicatory body, the B.C. Human Rights Tribunal. But B.C. will restore to British Columbians an essential institution — this time in the form of an independent Officer of the Legislature — with a mandate to promote and protect human rights by providing education; developing guidelines and policies to assist and inform employers, landlords and services providers about how to comply with the Code; examining the human rights implications of policies, programs or legislation; making recommendations regarding compliance with human rights; and undertaking studies, research or inquiries that could assist British Columbians to deal with broader human rights issues that affect whole groups or communities.

With a clear mandate to address systemic discrimination, the B.C. Commissioner has been given two significant new powers: the power to initiate public inquiries and the power to promote compliance with international human rights obligations.

The public inquiry powers permit the Commissioner to inquire into a matter, when doing so would "promote or protect" human rights. When an inquiry is initiated, the Commissioner can require attendance of witnesses and production of information, make a report with recommendations, and require a response regarding steps taken to implement the recommendations.  Using similar powers, the Ontario Human Rights Commission launched an inquiry into racial profiling and racial discrimination by the Toronto Police Service in 2017.

A unique power given to the B.C. Commissioner is the authority to promote compliance with international human rights obligations. This is a mandate that, for many years, community advocates have wanted human rights commissions to have. Since provincial and municipal governments are bound by the international human rights treaties that Canada has ratified, including the Convention on the Elimination of Discrimination against Women, the Convention on the Elimination of Racial Discrimination, and the Covenant on Economic, Social and Cultural Rights, these treaties should be accepted as part of the human rights framework for every jurisdiction, and compliance with them should be integrated into the work of all human rights commissions. B.C. has been the first to incorporate that role explicitly in its human rights legislation, and deserves applause for it.

The one weakness in this legislation is that the Commissioner does not have the power to initiate complaints when to do so would be in the public interest. Commissions in a number of other jurisdictions have this power. The B.C. Commissioner should have the flexibility to initiate a complaint as an important back-stop for the education and inquiry powers. When persuasion and recommendations do not work, the Commissioner should be empowered to seek a remedy from the Tribunal. On the positive side, the Commissioner has the power to intervene in complaints or in courts cases, and to assist a person or group with any aspect of a complaint.

This legislation is a big step forward for British Columbia, and the Government of British Columbia deserves praise for restoring a crucial institution and for being innovative.

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Midwives are affected by gender in three different ways: they belong to a profession overwhelmingly composed of women; they provide services only to women; and the services they provide support women's distinctive reproductive capacity to bear children. In a decision that the Association of Ontario Midwives (“AOM”) has called a "landmark", the Human Rights Tribunal recognized that discrimination based on gender has infected the Government of Ontario's determination of pay rates for midwives since 2005. 

The Tribunal's decision fully acknowledges the systemic discrimination that skews pay rates for a profession that is so gendered. What is troubling is that the AOM has spent years of work to obtain this decision and that they had to lay down again facts and principles about women's lives and women's work that were recognized more than two decades ago.

Midwives were first regulated as an independent profession in 1993. In anticipation, in 1985, the Government of Ontario appointed a Task Force on the Implementation of Midwifery, chaired by Mary Eberts, which recommended a framework for the regulation of the profession. The Task Force recognized midwives as specialists in providing care to women with healthy, low-risk pregnancies. As a result of the Task Force recommendations, the pay rate for midwives, as independent health care professionals, was set between the rate for senior nurses and the rate for family physicians in Community Health Clinics. This was done on the basis of a thorough job evaluation, and, at the time, the midwives and the Ministry of Health agreed that this methodology fairly compensated midwives for the actual services they provide, and ensured that gender did not affect their pay rates.

The Tribunal found that for the decade between 1995 and 2005, this structure held, but after 2005, it did not. Midwives compensation rates were affected by wage freezes, and while the rates for family physicians in Community Health Centres were subsequently adjusted, rates for midwives slipped backwards and the previously accepted ratio between the two was not maintained. Subsequently, the Ministry of Health rejected the family physicians in Community Health Centres as an appropriate comparator for midwives pay rates, and also rejected the fact that gender played any role, or should play any role, in the Ministry of Health's consideration of pay rates for midwives. The Ministry of Health maintained this position, even though three different expert reports, including the Courtyard Report issued in 2010, reconfirmed the original principles and compensation structure as appropriate and fair.

The Tribunal had to decide whether it matters that the gender composition of one of the original comparator groups — family physicians in Community Health Centres — has changed since 1993. They were predominantly male when the pay structure was formulated; in 2018 more women than men are family physicians in Community Health Centres. The Tribunal decided that this was not a telling point. The crucial fact here is that midwives are a group of sex-segregated workers, devoted solely to women's reproductive health care, whose compensation levels will be affected by sex discrimination, unless that discrimination is recognized and corrected for. The Tribunal concluded that "the Ministry of Health unilaterally withdrew from the 1993 principles and methodology, leaving the compensation of midwives exposed to the well-known effect of gender discrimination on women's compensation."

Shaping the remedy is left in the hands of the parties, unless they cannot agree. The Tribunal recommends that they "reset their relationship" and establish a new process for maintaining appropriate and non-discriminatory compensation levels for midwives that is based on the original funding principles.

This is an excellent remedy for a circumstance like this one, where complex negotiations are needed, and there is an ongoing relationship. But, if the First Nations Family and Child Caring Society is an example, these parties may be back in front of the Tribunal, perhaps more than once, before a new pay structure, that is free of gender discrimination, is in place.

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The Supreme Court of Canada just closed another door on avenues to deal with the never-ending sex discrimination in the Indian Act. It ruled in Canada (Human Rights Comm.) and Matson v. Canada (Attorney General) that the Canadian Human Rights Act cannot be used to seek a remedy for sex discrimination in the Indian Act because complaints are a direct challenge to the legislation, not a challenge to discrimination in a public service. Legislating is not a public service. Consequently, there can be no human rights complaint.

The Court could have ruled otherwise. The Canadian Human Rights Commission argued that registration under the Indian Act is a service. If registration is denied because of the sex discrimination in the Indian Act, Jeremy Matson and others like him are barred from accessing tangible benefits, including extended health care coverage, and support for post-secondary education, as well as the intangible benefit of having one's First Nations ancestry officially recognized. The sex discrimination in the Indian Act is a bar to receiving benefits for those persons whose Indian ancestor is female not male, or whose female Indian ancestor married, or had children, with a non-status Indian man. This group is refused benefits in the same way that Robert Tranchemontagne was refused disability benefits in Ontario because his particular disability was alcohol and drug use (see Tranchemontagne v. Ontario (Dir., Disability Support Program) (2006), 56 C.H.R.R. D/1 (S.C.C.) and Ontario (Disability Support Program) v. Tranchemontagne (2010), 71 C.H.R.R. D/1 (Ont. C.A.).

There have been numerous cases in which tribunals and courts have accepted that public benefit schemes constitute services customarily available to the public. And, as the Commission pointed out, tribunals have dealt with discrimination in legislated rules governing receipt of benefits, including income assistance benefits (Hendershott v. Ontario (Community and Social Services) (No. 1) (2011), 72 C.H.R.R. D/1 (H.R.T.O.); survivor pension benefits (Gwinner v. Alberta (Minister of Human Resources and Employment) (2002), 44 C.H.R.R. D/52 (Alta. Q.B.)); and workers' compensation benefits (Seberras v. Workplace Safety and Insurance Board of Ontario (No. 5) (2012), 73 C.H.R.R. D/446 (H.R.T.O.), just to name some. When it is discrimination that bars an individual or group from receiving benefits, whether that bar is legislated or not, the Canadian Human Rights Tribunal should be able to address it.

Instead of taking a deep dive into the arguments about whether Matson was discriminatorily denied a service, the Supreme Court of Canada focused on whether the Court should defer to the Human Rights Tribunal. The majority (Gascon, Abella, Moldaver, Karakatsanis, Wagner JJ., and McLachlin C.J.) said that the Court should defer. Since the Tribunal decided that it could not deal with Matson's complaint, this seems a suspiciously easy ruling to make. It would have been a real test of the Court's willingness to defer to a human rights tribunal, if the Tribunal had found it could decide the case, and ruled that Matson was barred from tangible and intangible benefits because of sex discrimination.

This is a very disappointing decision from the Court, one that narrows the application of s. 5 of the Canadian Human Rights Act, and narrows access to justice for Indigenous complainants, who have now been told they must go to court and rely on the Charter to challenge any discrimination that flows from legislated provisions of the Indian Act.

Until 2008, s. 67 of the Act barred the Commission from accepting complaints regarding actions by Band Councils or the Government of Canada that were made pursuant to the Indian Act. When s. 67 was repealed, this was held out as an important step in improving access to justice for Indigenous people. But the Matson decision demonstrates just how empty a gesture it was to repeal s. 67. The capacity of the federal human rights system to assist First Nations people with discrimination authorized by the Indian Act was so late in coming, and now it has been seriously weakened by the Supreme Court of Canada.

This decision of the Supreme Court of Canada is also disappointing because it unnecessarily prolongs the life of legislated sex discrimination against First Nations women and their descendants. For Jeremy Matson, Sharon McIvor, and about 260,000 other First Nations women and descendants of women1 who would be entitled to Indian status if the sex discrimination were finally and completely eliminated, this decision is dismaying, but probably not surprising. Efforts to end Indian Act sex discrimination have been made continuously in Canada since Jeannette Corbiere Lavell and Yvonne Bedard were first in the Supreme Court in 1973. For forty-five years, neither Canada's courts and tribunals, nor successive Governments of Canada, have had the will to end it.

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1.             Parliamentary Budget Officer, Bill S-3: Addressing Sex-Based Inequities in the Indian Act, December 5, 2017, online: http://www.pbo-dpb.gc.ca/web/default/files/Documents/Reports/2017/Bill%2...

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In January of 2014, the president of Trinity Western University (“TWU”) released a celebratory letter advising that all major hurdles for accreditation of a proposed law school had been met, despite objections to the university's community covenant, which provided for the discipline or dismissal of students, staff or faculty who engaged in any intimate activity, except between a man and a woman, who were married.

As the recent decision of the Supreme Court of Canada reveals, TWU's confidence was premature, but it stemmed in large part from the earlier 2001 Supreme Court of Canada decision which overturned a refusal by the British Columbia College of Teachers to accredit a proposed teacher training program at the university as a result of the discriminatory effects of the community covenant.

The 2001 SCC decision [Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31, 39 C.H.R.R. D/357] rested largely on an interpretation of the Teaching Profession Act and the authority it delegated to the British Columbia College of Teachers. The SCC concluded that this act only permitted considerations relating to the effect of accrediting TWU on the conduct of future graduates from the program. On this narrow analysis, not surprisingly, the Court found there was no evidence that graduates from a university with discriminatory policies would, themselves, act in a discriminatory fashion when they became teachers.

The British Columbia College of Teachers was not permitted to consider the public interest implications of granting approval to an institution with discriminatory policies.

In obiter, the SCC suggested that TWU was not subject to the then Human Rights Act, on the basis of s. 19 (now s. 41 of the Human Rights Code). This section exempts religious, and other organizations, which have, as their primary purpose, the promotion of the interests and welfare of an identifiable group or class of persons characterized by, amongst other things, “a common religion”.

These comments have resulted in repeated claims by TWU that the covenant did not breach the Human Rights Code.

Trinity Western University was created by provincial statute: The Trinity Western University Act, S.B.C. 1969, c. 44. Section 3(2) of this act sets out the purpose of the university, in this way: “The objects of the University shall be to provide for young people of any race, colour, or creed university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian”.

As the legislatively defined purpose of the university is not to promote the interests of people with a common religion, but rather to provide a university education for young people of any race, colour or creed, with an education with a particular philosophy and viewpoint, a more careful analysis of s. 41 of the Human Rights Code may not actually afford TWU any exemption.

The recent Supreme Court of Canada decision, upholding the British Columbia [Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, CHRR Doc. 18-3036] and Ontario Law Society [Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, CHRR Doc. 18-3037] decisions to deny accreditation for TWU's proposed law school was premised on a more expansive interpretation of the Law Societies' legislative authority. Unlike the British Columbia College of Teachers, the Law Societies were not restricted to considerations with respect to the conduct of theoretical future graduates.

In British Columbia, the object and duties of the Law Society are set out in s. 3 of the Legal Profession Act. It is the object and duty of the Law Society to uphold and protect the public interest in the administration of justice by, amongst other things, preserving and protecting the rights and freedoms of all persons.

While, through the course of the litigation, and public debate, TWU attempted to characterize the Law Society decision to refuse approval for the proposed law school in terms of the anticipated conduct, or religious beliefs, of theoretical future graduates, this mischaracterization was rejected by the Supreme Court of Canada.

On the basis that the Law Societies have a duty to consider matters other than the conduct of future graduates, the decision to deny approval to a university with discriminatory policies was found to be reasonable and in accordance with the Law Societies mandate.

In August 2018, just two months following the SCC decision, TWU announced that it was going to make the discriminatory covenant optional for future students. TWU confirmed, however, that it would remain mandatory for faculty and staff, who will still be subject to discipline or dismissal for engaging in any intimate activity, outside of a heterosexual marriage.

If, as seems likely, TWU tries again to open a law school, they will still face challenges, as long as they maintain their discriminatory policy with respect to faculty and staff.

In order to grant degrees in British Columbia, approval must be obtained from the Minister of Advanced Education. When TWU originally applied to open a law school, the then Minister of Advanced Education commissioned a report on the proposal by a panel of academic experts. The report identified a number of concerns, including the capacity of TWU to attract and retain high caliber faculty in light of the discriminatory covenant. When the Law Society revoked approval for TWU, the then Minister of Advanced Education revoked the provisional approval, which had been granted. As a result, the faculty recruitment and retention issue was not resolved. In the event of any future application for approval to grant degrees, this issue would need to be resolved, to the satisfaction of the Minister of Advanced Education.

Law Societies would then need to determine if granting approval to a university with a discriminatory policy that applies to faculty and staff, would be in the public interest.

One of the cases referenced, in the course of the most recent litigation, by the Ontario Court of Appeal, was Bob Jones University v. United States, 461 U.S. 574 (1983). That United States Supreme Court decision, considered the tax status of Bob Jones University. Bob Jones University had a policy that prohibited interracial dating, on religious grounds. The decision revoked Bob Jones Universities ability to issue tax receipt for donations. Despite the decision, Bob Jones University maintained the ban on interracial dating until the year 2000. TWU's prohibition on same sex intimate activity is the moral equivalent to the Bob Jones University prohibition on interracial dating.

It is difficult to imagine that a university which prohibited faculty and staff from engaging in any intimate activity with anyone of a different race would receive discretionary approval from the Law Society that is obliged to make decisions that are in the public interest. The same analysis ought to apply in the event of a reapplication by TWU to the Law Society.

Michael Mulligan

Michael Mulligan is a lawyer at Mulligan Tam Pearson in Victoria, B.C. He played a leading role in ensuring that the B.C. Law Society refused to accredit a law school whose students, faculty and staff were required to adhere to a discriminatory covenant.

 

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At the time of the #MeToo movement, examination of available procedures for obtaining remedies for sexual harassment and sexual assault has become particularly important. The Human Rights Tribunal of Ontario issued a recent decision in G.M. v. X Tattoo Parlour that demonstrates an additional way in which human rights complaints can assist women who are harassed and assaulted.

Customarily, in human rights complaints filed by women who are harassed at work, both the facts and the remedy are decided by a Tribunal.  In the case of G.M., however, the facts were decided by Justice J.M. Grossman of the Ontario Court of Justice in May 2016 in a criminal hearing of charges against the respondent. The Human Rights Tribunal of Ontario ruled solely on remedy, awarding G.M. $75,000 as compensation for the injury to her dignity and self-respect.

The complainant in this case, G.M., was fifteen years old. The respondent was a family friend, and G.M.'s mother and the responden's wife were best friends. The respondent opened the X Tattoo Parlour with a loan from G.M.'s parents.

G.M. loved to draw and planned a future as a tattoo artist. She had some struggles in school and at home, but she began to improve her grades and to work as a volunteer. In 2014 G.M. asked the respondent if she could volunteer in the tattoo parlour and train to do tattooing. It was agreed, and she began to volunteer in the summer of 2014.

At the tattoo parlour, the respondent asked her intrusive and embarrassing questions about her gender preference and sexual activities. She tried to avoid these discussions. On August 27, 2014, when she was alone at the tattoo parlour with the respondent, he assaulted her, showed her his penis, inserted his finger in her vagina and put his mouth on her breasts. He also offered her money and a free tattoo in exchange for sex. The respondent pleaded guilty to criminal charges of sexual assault, invitation to sexual touching and sexual interference. The Tribunal accepted the findings of fact made by the court.

As Kasari Govender, Executive Director of West Coast LEAF (Women's Legal Education and Action Fund) pointed out at the recent conference of the Canadian Association of Statutory Human Rights Agencies in Whitehorse, Yukon, the benefit to G.M. of the Tribunal's acceptance of the fact-finding from the criminal hearing is that she could seek a human rights remedy, without having to testify one more time about the facts of the assault and sexual interference, in other words, without being re-traumatized. At the human rights hearing, the focus was on G.M. and the harm done to her by the respondent's conduct.

As a result, G.M. says that the Tribunal's award provides justice that she didn't receive through the criminal trial. "It made me feel that for the first time I had achieved something, within this whole case, that didn't leave me extremely disappointed …" (Huffington Post, March 30, 2018).

The Tribunal's decision also provides justice because of the amount of the award. Awards in sexual harassment cases are rising, as they should, to reflect the seriousness of the violation that has occurred. In this case, the Tribunal took into account her age and the serious breach of trust that was involved. Hopefully, the amount also reflects a growing understanding that sexual harassment is no joke.

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