A decision from the Canadian Human Rights Tribunal on the complaint of the First Nations Child and Family Caring Society (“FNCFCS”) against Indian and Northern Affairs is expected this month. The Government of Canada, under Stephen Harper, tried to block this complaint from being heard on the merits, and used every legal tool available to delay and complicate the proceedings. Let's hope those days are over.
Filed in 2007, the basic allegation of FNCFCS is that the Government of Canada under-funds child welfare services for on-reserve First Nations children. Provinces fund child welfare services at a higher level, and FNCFCS says that the federal government's under-funding of child welfare services has a systemic discriminatory impact on the lives of Aboriginal children living on reserves.
After first trying to prevent the Canadian Human Rights Commission from referring the complaint for hearing, in 2011 the Government of Canada asked the Tribunal to dismiss the complaint on a preliminary motion. Canada argued that the complaint was not properly grounded in the law because: (1) funding is not a service within the meaning of the Canadian Human Rights Act, and (2) the complaint relies on an improper comparison between federal and provincial governments.
Tribunal Member Shirish Chotalia agreed, and dismissed the complaint on the grounds that the Act does not permit a comparison between services provided by two different service providers to two different sets of recipients (73 C.H.R.R. D/219). In other words, FNCFCS cannot compare services provided by the federal government to on-reserve children to services provided by provincial governments to off-reserve children. Chotalia concluded that, in the absence of a proper comparator group, there could be no finding of adverse differential treatment against the Government of Canada, and so the complaint could not proceed.
In April 2012, the Federal Court of Canada overturned this Tribunal decision (74 C.H.R.R. D/230), breathing some common sense into interpretation of the Act. The Federal Court pointed out that there are many complaints in which a direct comparison is not possible or relevant. The Court noted that comparison is an evidentiary tool that can illuminate how discrimination works in a particular case. But it is not a requirement of the law.
With respect to Aboriginal people, the situation is distinct. The Government of Canada provides some services only to Aboriginal people on reserves. Similar services – health, education, child welfare – are provided to other Canadians by provincial or territorial governments. If the Canadian Human Rights Act cannot apply when Aboriginal people wish to complain that a service provided only to them is so deficient that it constitutes systemic discrimination, the Act cannot respond to the realities of their lives.
When the Government finally, in 2007, repealed the statutory bar to human rights complaints being filed against Band Councils or the Government of Canada when they were acting under the Indian Act, Minister Jim Prentice said that Aboriginal people could now file complaints regarding access to services or the quality of services available to them on reserve. But before the Tribunal and the Federal Court, the Government of Canada argued exactly the opposite. Aboriginal people cannot complain about the quality of a service provided only to them – said the Government of Canada – because they must make a comparison, and they have no other group to compare themselves to.
The Federal Court found this interpretation unreasonable because it excludes First Nations people from human rights protection when services are provided only to them. In March 2013, the Federal Court of Appeal (76 C.H.R.R. D/353) upheld Federal Court's decision, and the complaint finally proceeded to a hearing on its merits.
Soon we will find out what the Tribunal has decided on this ground-breaking issue. We will find out whether the Canadian Human Rights Act can provide an effective legal remedy for on reserve First Nations people when they are discriminated against. But, no matter which way the Tribunal rules, this is the moment for the new Government of Canada to step up and provide adequate funding for basic public services on reserves. Harper's administration obstructed the fulfillment of the rights of Indigenous peoples in many ways and in many venues. Let's hope that the new Ministers of Justice and Indigenous Affairs will sweep that practice away, and give us a new path.
A breath of fresh air just blew through the Canadian human rights community. That breath of fresh air has a name: Marie-Claude Landry, the new Chief Commissioner of the Canadian Human Rights Commission.
First of all, as the newly appointed Chief Commissioner she undertook a cross-country consultation with human rights groups and equality-seekers to introduce herself and to listen. She asked: what support are human rights groups looking for? and what does the Commission need to do now? A lot of diverse groups across the country told Ms. Landry that the Canadian Human Rights Commission needs to have a strong public presence and be a voice for human rights. They told her that they need her to speak up.
Canada's human rights institutions matter. They are the public voice for human rights. When they are “risk‐averse” and soft‐spoken, there is a public silence about some of the toughest human rights problems. That shrinks public understanding of human rights.
We need human rights commissions to engage with the key human rights issues of the day so that, as Canadians, we stay alert to what is happening in our midst, and stay conscientious and determined to achieve equality. Human rights institutions – whose business it is to address inequality – must be vocal about persistent patterns of discrimination in Canadian society.
Our human rights commissions are not simply processors of complaints, or advisors to business about complaint-avoidance. We need them to be public, courageous and outspoken advocates, identifying human rights violations, speaking out about them, and working for an end to discrimination, in all its forms.
The new Chief Commissioner seems to understand this, and has shown herself ready to both listen and speak. Right after the election, Marie-Claude Landry issued a press release calling on a new Parliament to “begin repairing the erosion of human rights in Canada, and to move swiftly to repeal legislation and reverse policies that promote discrimination and prejudice”. Among other things, Ms. Landry called on the new government to:
· accelerate the process for bringing in refugees and asylum seekers and ensure that the selection process is not discriminatory;
· ensure that the arbitrary detention of thousands of undocumented people seeking asylum in Canada, many of whom are suffering from mental illness, is brought to an end;
· immediately convene a national inquiry into missing and murdered Aboriginal women and girls, and develop a national action plan;
· ensure that all people in Canada have access to safe drinking water and adequate housing;
· end the inequitable funding of child welfare services and schools on First Nations reserves;
· stop the overuse of solitary confinement to manage offenders, particularly those who are Black and Aboriginal and those with mental illness; and
· protect the rights of all women to express their religion.
This is a good start. Now it will be important for Canadians to show we support an outspoken and brave new Commissioner, and for Parliament to show us that this is a new era for human rights in Canada.
The more you learn about the federal policy on the niqab issue, the more absurd it becomes. Press reports do not tell the details of the court case or reveal the real circumstances of the citizenship ceremony. It helps to look beyond the current cut lines.
Zunera Ishaq comes from Pakistan and is a devout Sunni Muslim. She says that her religious beliefs obligate her to wear a veil that covers most of her face. She will unveil herself to a stranger only if it is absolutely necessary to prove her identity, or for purposes of security, and even then only privately in front of other women.
In December 2011, Citizenship and Immigration Canada (“CIC”) announced a new policy requiring all persons to take the citizenship oath with their faces uncovered. CIC told the Federal Court that the reason for this new policy was “concerns that citizenship candidates were not actually reciting the oath”.
You might wonder why reciting the oath, and being seen to recite the oath, is crucial. By the time candidates get to a citizenship ceremony they have already been granted citizenship. They have met all the requirements and are going through the final formalities. They have passed a citizenship exam and their identity has been confirmed for security purposes. Ms. Ishaq removed her face veil in order to be identified.
After reciting the oath each candidate signs a form certifying that she has taken the oath of citizenship. The Federal Court found that it is the candidate's signature on this form, rather than a visual confirmation of the candidate saying the oath, that is the proof needed that a candidate has taken the oath of citizenship.
Nonetheless, at the ceremony, the candidates, as a group, recite the oath. Depending on where and when the ceremony is held, there may be 20 or 50 candidates reciting the oath together. The 2011 policy is ostensibly intended to ensure that the citizenship judge can see the faces of the candidates reciting the oath. But a citizenship judge cannot reasonably be expected to keep track of exactly what is being said by 20 or 50 moving mouths in front of her. If seeing the candidates recite the oath is crucial, surely it should be done one by one, not in chorus.
But the 2011 policy stipulated that if a candidate did not remove a face covering while saying the oath during the citizenship ceremony, the Certificate of Citizenship would not be given, and citizenship would not be granted. It also stipulated that despite the fact that CIC's website advises that there can be private citizenship ceremonies in urgent or extenuating circumstances, “under this new directive there are no options for private oath taking, or oath taking with a female official”.
For CIC to simply assert that the value of women’s equality is in issue does not amount to a justification for the discriminatory effects of the policy on Ms. Ishaq. If the no face covering policy were challenged in a human rights complaint – and it could easily have been, since citizenship judges seem to be providing a public service similar to that provided by marriage commissioners – CIC would be required to demonstrate that the policy is reasonably necessary to the pursuit of equality for women, and that accommodating Ms. Ishaq would be an undue hardship.
Where is the evidence that permitting a veiled woman to recite the citizenship oath is a serious threat to the achievement of women's equality? Also, is agreeing not to wear a face veil for the one-minute citizenship oath an adequate measure of adherence to this value? Surely, there could be more meaningful tests, ones that might apply to men as well.
However, if we do not want to test all candidates for citizenship about their commitment to women’s equality, then this policy simply targets niqab-wearing Muslim women, treats them as “un-Canadian” and suspicious, and promotes a discriminatory attitude towards them that has already caused violence.
Canada's human rights performance was just reviewed by the United Nations Human Rights Committee. A number of Canadian NGOs made submissions and went to Geneva for the review, including the Canadian Feminist Alliance for International Action, which is an alliance of more than sixty national, provincial and local women's organizations.
In its Concluding Observations, the United Nations Committee took Canada to task for “persistent inequalities between women and men” and made a special point about Canada's gender wage gap, which costs women about 23 cents on every dollar. According to the World Economic Forum's Global Gender Gap Report of 2014, Canada's wage equality ranks in 27th place behind the Philippines, Nigeria and Albania. A study by Catalyst Canada shows that Canada's gender wage gap is twice the global average.
When Canada was questioned by Committee members during the review, the Canadian delegation demonstrated no concern about the gender pay gap. The delegation informed the Committee that if we subtracted from the calculation women's family status, time out of the work force to look after children, and occupation, women would earn 91 cents for every male dollar. It was an astounding reply: if women were the same as men, they would be paid more. That's the problem alright, but it's not the answer.
Canada's disinterest contrasts with the concern shown in another Conservative-led country, the United Kingdom, where Prime Minister David Cameron recently announced that his government will require firms with more than 250 employees to publish the average pay of male and female employees. Cameron hopes that this will pressure firms into boosting women's wages, and that the pay gap will be eliminated in a generation. The Office of National Statistics reports the gender wage gap in the U.K. at 9.4%, less than half of Canada's.
As a strategy, Cameron's requirement on firms to publish their pay data, with nothing else, is not likely to be effective. Nonetheless, it is refreshing to a Canadian ear to hear a Prime Minister recognize that employment discrimination remains a regular, and unacceptable, feature of women's lives.
The United Nations Human Rights Committee told Canada to “guarantee that men and women receive equal pay for work of equal value across its territory” whether they are working in the public or the private sector. Implementing this recommendation means a big change in Canada's laws on women's pay.
Equal pay for work of equal value – or pay equity – laws go beyond requiring that men and women receive the same pay when doing the same work. Pay equity laws permit comparisons between pay rates for work performed principally by women and pay rates for work performed principally by men.
Since the 1980s, Canada has had pay equity legislation that covers both the public and private sectors only in federal jurisdiction, Ontario and Quebec. Because in 2009, the Harper administration gutted pay equity protection for employees of the federal government, the federal public sector can no longer be counted as covered, although the federal private sector still is.
Manitoba, Nova Scotia, New Brunswick and Prince Edward Island all have legislation mandating some pay equity measures for the public sector, but not for the private sector. Saskatchewan, Newfoundland, British Columbia, and Alberta have no pay equity legislation at all.
In a workforce like Canada's, which remains highly sex-segregated, legislation requiring comparison between pay rates for traditionally female work and traditionally male work is an essential tool to address systemic gender-based wage discrimination. But it is not the only one. Pay equity laws need to be accompanied by other strategies, such as removing discriminatory barriers to better-paying jobs, promoting unionization of women, increasing the minimum wage, and providing affordable child care.
In 2015 it is time for Canada to have a national wage gap strategy that can deliver equality in pay to women. If we do not, at the rate we are going, women will wait another fifty years.
Shelagh Day, President and Senior Editor
Canadian Human Rights Reporter
 This is the 2011 Statistics Canada figure for Canada.
Few who have followed the long and winding doctrinal road(s) of making-out a prima facie case of adverse effects discrimination, or of a breach of s. 15 of the Charter in like cases, would argue that statistics are a straightforward element. Civil litigators know that statistics in the air hold little promise of convincing a court. This is evidently so in building a prima facie case. In 2001, Colleen Sheppard, in “Of Forest Fires and Systemic Discrimination: A Review of British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.” argued that lawyers and adjudicators needed a sophisticated and coherent theory of adverse effects discrimination ((2001) 46 McGill L.J. 533). She bemoaned the Supreme Court's failure in Meiorin ( 3 S.C.R. 3, 35 C.H.R.R. D/257), “to elaborate even slightly on the Court's conclusion that the facts disclosed a prima facie case of discrimination” (p. 545). Though the Court looked to statistics showing women's aerobic capacity to be 65– 70 percent that of men in support of its conclusion that Ms. Meiorin had established a prima facie case of discrimination in challenging a sprinting test, it offered no guidance as to just where the line was as to “When does a statistical disparity reveal discrimination?” (pp. 545–46).
Judging by the recent case of Kahkewistakaw First Nation v. Taypotat, 2015 SCC 30, lawyers and adjudicators continue to need guidance on the utility of stitching statistics into the fabric of a prima facie case showing a breach of s. 15 of the Charter. What was easy-peasy general statistical proof for the Federal Court of Appeal became a mere “web of instinct” in the eyes of the Supreme Court (para. 34). In the view of the Supreme Court of Canada, the statistics offered by the plaintiff did not establish adverse effects that were connected to a protected ground. So, in the end, 74-year-old Chief Louis Taypotat lost his Charter challenge to Kahkewistahaw First Nation's Elections Act's Grade 12 requirement for candidates for Chief or Band Councillor. Mr. Taypotat had advanced his s. 15 case on the enumerated ground of age and the analogous ground of Aboriginality/Residence.
Kahkewistahaw is a sign that lawyers framing adverse effects cases involving statistics need to be on top of human rights jurisprudence. My contention is that there is much to be learned from the first principles of anti-discrimination adverse effects jurisprudence developed, beginning in the 1980s, before human rights tribunals and reported comprehensively, as nowhere else, in the Canadian Human Rights Reporter (www.cdn-hr-reporter.ca). This follows from Pearl Eliadis' point, “The central principle of equality anchored in the Charter is the same general principle that underpins human rights legislation and the work of human rights commissions and tribunals” (Speaking Out on Human Rights: Debating Canada's Human Rights System (Montreal & Kingston: McGill-Queen's University Press, 2014) at p. 203). And, it is the latter that has driven the former all along. Shelagh Day, Lucie Lamarche and Ken Norman note, “At the beginning of Charter equality rights interpretation the Supreme Court of Canada carried the fundamental principles that had been established in human rights jurisprudence into interpretation of Charter equality guarantees. Perhaps most important of these was the understanding that discrimination is not defined by intent but by adverse effects” (14 Arguments in Favour of Human Rights Institutions (Toronto: Irwin Law Inc., 2014)).
A recent case on point is Vancouver Area Network of Drug Users v. British Columbia (Human Rights Tribunal), 2015 BCSC 534, CHRR Doc. 15-3031 (“VANDU”), where the rich human rights jurisprudence on adverse effects discrimination is adopted. VANDU, at para. 87, sees in the BCHRT decision in Radek v. Henderson Development (Canada) Ltd. (No. 3), 2005 BCHRT 302, 52 C.H.R.R. D/430, “a mirror image of this case”. The Tribuna's extensive discussion in Radek centers on an initial vital point about statistics as a useful — but not essential — signal that, as the SCC said in Moore, “the protected characteristic was a factor in the adverse impact” (emphasis added). In Radek, at para. 513, the Tribunal said:
… to return to first principles, what is necessary is evidence of “practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics …”: Action travail des femmes [ 1 S.C.R. 1114, 8 C.H.R.R. D/4210]. Statistics may be a “signal” of such effects, but they are not necessary in every case. The signal should not be confused with the thing signified. [Emphasis added.]
Ken Norman, Professor Emeritus,
University of Saskatchewan College of Law
 See, Gwen Brodsky, Shelagh Day, and Yvonne Peters, Accommodation in the 21st Century, (March, 2012), Online: Canadian Human Rights Commission http://www.chrc-ccdp.gc.ca/proactive_initiatives/default-eng.aspx, for a discussion of recent attacks launched by respondents, prompted by the heightened standard of the duty to accommodate in light of Meiorin, infra, on the elements of proving a prima facie case.
 Taypotat v. Kahkewistahaw First Nation (2013), 365 D.L.R. (4th) 485 at para. 48, where the Court of Appeal notes that “The education gap within the on-reserve aboriginal population of Canada is well documented … Moreover, the education gap between older and younger Canadians is also well-known”.
 Moore v. British Columbia (Education), 2012 SCC 61, 75 C.H.R.R. D/369, at para. 33
In an unusual decision, the B.C. Human Rights Tribunal ruled recently that a young Filipino domestic worker was a “virtual slave” when she came to Canada with a family who was moving from Hong Kong (CHRR Doc. 15-0060). Her circumstances reveal how, because of a number of intersecting vulnerabilities, domestic workers like PN can be in our midst, but lack the protections that most Canadians take for granted.
PN is a 28 year old woman with two children of her own in the Philippines. She moved to Hong Kong to work with a family because, as the Tribunal heard from expert witnesses, she, like other Filipino women, cannot find jobs at home that will pay them wages that are even close to those that they can earn abroad.
When the family moved to Canada they pressured her to come with them, took her to the Canadian consulate, got her a visa – which was temporary although she did not know it – and required her to sign a contract that stipulated she would pay back the plane fare and visa fee (together worth thousands of dollars) if she broke the contract. In exchange, she would receive room and board and approximately $600 (CDN) a month.
Her conditions were extreme. The family moved temporarily into a hotel suite in Richmond because the house they had bought was not ready for occupancy. There were two bedrooms. The father, FR, slept in one room with his son, and the mother, MR, slept in the other room with her daughter. PN slept on the sofa in the living room, where she had no privacy at any time of the day or night. She worked from 5:30 in the morning until 11 at night. MR controlled her food, often leaving her hungry, and she berated, demeaned and humiliated PN in front of other people. FR regularly sexually abused her when MR was absent by putting lotion on her hand and making her stroke his penis. She was prohibited from speaking her own language to anyone at the hotel, and her passport was taken away for “safekeeping”.
After six weeks, PN walked away from the family with nothing but the clothes she was wearing – no money, no passport, no eyeglasses. She found her way to a shelter for trafficked women, and eventually made a human rights complaint. Her lawyer, Devyn Cousineau, says that PN represents the “tip of the iceberg” because there are many other women in similar circumstances who are too afraid to claim their rights. PN tolerated the abuse for as long as she did because she was afraid that she would have to pay back money she did not have, and that no one would help her. She was lucky, but her fears were justified.
What is unusual is not just that PN came forward, but also the ruling of the Tribunal. Unsurprisingly, the Tribunal found that FR sexually harassed and assaulted PN by coercing her into stroking his penis. However, the Tribunal also ruled that “virtually every aspect of her employment, including the contract, was exploitation that amounts to discrimination”. In other words, having canvassed the intersecting vulnerabilities of PN based on race, sex, and place of origin, the Tribunal found that the conditions of work were so harsh and PN's treatment so demeaning that it constituted discrimination. The Tribunal avoided requiring an artificial comparison with another worker's conditions or treatment.
We are left to worry about how other women who come to Canada in similar circumstances can obtain help, as well as about what happens to them if they do. Canada issues very few temporary residence permits to women who have been trafficked to Canada as “virtual slaves”, as PN was. Only 89 such permits were issued between 2006 and 2012. That means that women who come to Canada as “slaves” have little chance of staying to become residents or citizens.
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.