High Impact Cases

Executive Summary:
The Canadian Human Rights Tribunal (Tribunal) ruling ensures service providers must assess any person with a disability individually when he/she is requesting accommodation.

Eddy Morten is deaf, blind in his left eye, and has limited vision in his right eye. In August 2004, Mr. Morten booked a flight on Air Canada and informed the airline that he was deaf/blind and that he wanted to travel unaccompanied. Air Canada denied the request, stating that Mr. Morten would be required to travel with an attendant.

The Tribunal ruled that service providers such as Air Canada cannot deny services to persons based merely on the fact that they have a particular disability. In cases where persons do have one or more disabilities that might not be able to be accommodated without undue hardship, an individualized assessment must occur.

As Mr. Morten did not receive such an assessment, Air Canada was found not to have accommodated Mr. Morten. The Tribunal ordered Air Canada to work with the Commission and Mr. Morten to develop an attendant policy that considers the communication strategies utilized by people such as Mr. Morten, the inherent risk posed by passengers with comprised mobility who are currently allowed to fly unaccompanied, and the fact that in emergency situations, many able-bodied passengers are unable to receive, process and act on safety-related emergency instructions. Mr. Morten was also awarded $10,000.00 for pain and suffering.

The Tribunal did not rule on the issue of whether Mr. Morten should be allowed to fly unattended on Air Canada. It reasoned that Mr. Morten was denied the right to have his level of self-reliance (and the associated safety risk) assessed in a manner consistent with the Canadian Human Rights Act (CHRA). The Commission is now defending the Tribunal’s decision before the Federal Court of Canada.

Decision:

Eddy Morten v. Air Canada 2009 CHRT 03 (26 January 2009)

Executive Summary:
Decisions from both the Tribunal and Federal Court of Canada (Federal Court) find that enforcing mandatory retirement policies discriminates against individuals on the basis of age.

Two Air Canada pilots filed complaints with the Canadian Human Rights Commission (CHRC), claiming that being forced to retire at age 60, pursuant to the terms of a collective agreement, was discriminatory and a violation of their human rights. Although the complaint was originally dismissed at the Tribunal, when appealed to the Federal Court, it was found that although age 60 was the “normal age of retirement” for pilots at Air Canada, additional issues were raised. Air Canada’s arguments fell within the defence entitled “bona fide occupational requirement” under paragraph 15(1)(c) of the CHRA, which states, “It is not a discriminatory practice if an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual”. However, the Court found that paragraph 15(1)(c) of the CHRA contravened section 15 of the Charter of Rights and Freedoms (“Charter”). As a result, the Federal Court sent the case back to the Tribunal to decide two main issues: 

1. Can paragraph 15(1)(c) be justified under section 1 of the Charter; being a reasonably justifiable limitation; and
2. Have the respondents made out a defence of a bona fide occupational requirement?

Below is a summary of the Tribunal’s decision:

1.) Can paragraph 15(1)(c) be justified under section 1 of the Charter?

In its analysis, the Tribunal applied the Oakes test from the Supreme Court of Canada. Under Oakes, a statute that is prima facie or “on its face/at first glance”, in contravention of the Charter may be saved if the objective of the provision of the statute is pressing and substantial and the means used to address this objective is proportional. The Tribunal identified that the objective of paragraph 15(1)(c) of the CHRA is to allow for the negotiation of mandatory retirement arrangements between employers and employees particularly through the collective bargaining process.

The Tribunal found that this objective was not pressing and substantial because the benefits associated with mandatory retirement can be achieved without mandatory retirement and because the workforce is aging and many individuals need and want to work past the mandatory retirement age. Furthermore, the Tribunal found that paragraph 15(1)(c), which does not require that retirement be negotiated, is not proportional because it lacks a rational connection to the objective of negotiating a mandatory retirement age. The Tribunal added that paragraph 15(1)(c) does not minimally impair the rights of the individual and noted that in many jurisdictions mandatory retirement is restricted to situations where employers have shown a bona fide occupational requirement. The Tribunal also found that the infringement on individual rights caused by paragraph 15(1)(c) outweighed any benefit it may serve and therefore lacked proportionality. The Tribunal concluded that paragraph 15(1)(c) was not saved by section 1 of the Charter.

2.) Have the respondents made out a defence of a bona fide occupational requirement?
 
The respondents, Air Canada and the Air Canada Pilots Association, argued that the mandatory retirement provision in the collective agreement is a bona fide occupational requirement. The Tribunal considered this argument under the three-step Meiorin analysis, which was articulated by the Supreme Court of Canada.  As the first two steps of the test were not in dispute, the Tribunal considered only whether the complainants could be accommodated without undue hardship to the respondent. The Tribunal concluded that, at the time the complainants were forced to retire, the existing international rules (the pre-November 2006 International Civil Aviation Organization “ICAO” Standards) would have permitted both of the complainants to continue to work as first officers but that the respondents did not offer this option to them and therefore their needs were not accommodated. 

The Tribunal also considered the current international rules (the post-November 2006 ICAO Standards), which allow captains to fly to age 65 provided they are accompanied by a first officer who is under 60. The Tribunal did not accept the evidence provided by Air Canada to the effect that under these rules it could not ensure the scheduling of its operations if pilots continued to work past the age of 60. Finally, with respect to the liability of the union, the Tribunal did not accept the evidence that the removal of mandatory retirement would deny younger pilots the right to move into the highest paid positions at Air Canada.

Decision:

George Vilven v. Air Canada, 2009 CHRT 24

Executive Summary:
In its examination into whether wage discrimination on the basis of gender existed, the Tribunal concluded that the Complainants had failed to demonstrate the existence of a wage gap and failed to present evidence in support of a claim for pain and suffering for all Complainants.  An Application for judicial review will be heard in the coming months.  

Background
The Complainants in this case are predominantly women “adjudicators”.  In its December 13, 2007 decision, the Tribunal found that the Respondents had discriminated against the Complainants who are predominantly female adjudicators. While both the predominantly male advisors and predominantly female adjudicators use their professional knowledge in the health sciences to determine eligibility for CPP disability benefits, only the male advisors are classified as health professionals. In contrast, the adjudicators (who must be nurses) are classified as program administrators.

In the first hearing, the Tribunal found that while the advisors and adjudicators did many of the same tasks and functions, there were differences that justified some, but not all, of the differential treatment. The Tribunal found that the Respondent had not provided a reasonable explanation for why an advisor is recognized as a health professional and compensated accordingly, while an adjudicator, when performing the same function, is paid as a program administrator.

The Tribunal held a second hearing to address the remedial issues and decided as follows:

Appropriate Redress of the Discriminatory Practice
The Tribunal found that the Respondents’ refusal to recognize the professional nature of the work performed by the female medical adjudicators in a manner proportionate to the work of the medical male advisors was discriminatory. This discriminatory practice deprived the adjudicators of professional recognition and proper compensation for their qualifications, which included payment of their licensing fees, as well as training and career advancement opportunities. 

The Respondents proposed a remedy; the creation of a new Nursing Subgroup and the Tribunal agreed. The Tribunal found that with this remedy, the disruption and negative consequences for the broader public service would be minimized. 

Compensation for Lost Wages
While the Tribunal found that although the Respondents had failed to provide the Complainants proper compensation for their qualifications, there was no evidence provided to indicate what the wage loss resulting from the discriminatory practice might be.

The Tribunal found that the Complainants failed to establish an accurate assessment of the wage loss. This was because the wage differential was speculative and based on job evaluation results that the Tribunal held were not reasonably accurate. Consequently, the Tribunal did not order compensation for wage loss.

Compensation for Pain and Suffering
In its first decision, the Tribunal noted that it was prepared to order that some compensation be provided to the Complainants in light of the evidence it heard about the frustration, demoralization and loss of self-esteem that they experienced as a result of the Respondents’ refusal to recognize their professional expertise. However, it did not determine the quantum of that award.

Following the hearing on remedies, the Tribunal decided to limit hurt feelings awards to the two Complainants that testified out of the more that 400 individual Complainants. The Tribunal held that making an award for hurt feelings for the rest of the Complainants in the absence of an evidentiary basis outlining the effects of the discriminatory practice on the individuals concerned, would amount to an award for hurt feelings ‘en masse’, which it held was not contemplated by the legislation.

Legal Expenses
The Tribunal ordered the Respondent to compensate the Complainants for their reasonable counsel costs.

Decision:

Ruth Walden et al. v. Social Development Canada, Treasury Board of Canada and Public Service Human Resources Management Agency of Canada, 2009 CHRT 16

Executive Summary:
Tribunal finds that the existence of stairs connecting two main streets and a park in downtown Ottawa discriminates against individuals with reduced mobility. Following a finding of discrimination on the basis of disability, an appeal to the Federal Court was made, holding that Mr. Brown had not been discriminated against because reasonable accommodation had been provided. Application to the Federal Court of Appeal (Court of Appeal) was made, returning the case back to the Tribunal.   

Mr. Brown brought a complaint against the National Capital Commission (NCC) concerning his inability, as an individual with reduced mobility, to move from York Street to Mackenzie Avenue and to access the park. The Tribunal agreed that he had in fact been prevented from being able to access the park leading to the Market area, and had therefore suffered from discrimination based on his disability.  

The NCC brought an application for judicial review of the Tribunal’s decision, and the Federal Court agreed with the NCC, stating that Mr. Brown had not been discriminated against because reasonable accommodation had been provided. The central issue on appeal was whether the Tribunal erred in concluding that there was discrimination for which there was not a bona fide defense.

On appeal, the Court of Appeal held that the standard of review applied by the Federal Court regarding the decision of the Tribunal was a question of mixed fact and law. Given the Tribunal’s specialized expertise, the Federal Court of Appeal found that the Federal Court erred by applying the incorrect standard of review and in substituting its own decision for that of the Tribunal. Having identified a number of errors on the part of the Tribunal, the Federal Court ought to have returned the matter to the Tribunal for re-determination.
 
The Court of Appeal agreed with the Federal Court's finding that the analysis of reasonable accommodation requires looking at the situation globally and that the assessment of reasonable accommodation is possible only after a proper balancing of the factors as held by the Supreme Court in Council of Canadians with Disabilities v. Via Rail Canada Inc. (“Via Rail”). 

A global assessment would have required the Tribunal to consider the entire context or "environment" in which the alleged discriminatory practice arises.  As stated in Via Rail:

“A "reasonable accommodation"," undue hardship or "undue obstacle" analysis is, necessarily, defined by who the complainant is, what the application is, what environment is being  complained about, what remedial options are required, and what remedial options are reasonably available.”
 
It was therefore incumbent on the Tribunal to review the whole area under re-development by the NCC rather than limiting itself to the specific site area.

The Court of Appeal followed the reminder in Via Rail that the duty to accommodate is limited by the words "reasonable" and "short of undue hardship" and requires the weighing of competing interests to find that a proper balancing of factors by the Tribunal would also have considered issues such as security, 24 hour access, safety, costs, among others.

The Court of Appeal set aside the judgment of the Federal Court and that of the Tribunal and remitted the matter to a differently constituted Tribunal for determination on the existing record along with such additional evidence as the parties deem necessary. No costs were ordered.

Decision:

CHRC & Bob Brown v. NCC and AGC, 2009 FCA 273

Executive Summary:
Tribunal inquiry finds that an employer must conduct an individual assessment into a candidate’s current qualifications and availabilities rather than rely on past knowledge and assumptions about the candidate. In this case, the Tribunal found that the complainant had been discriminated against on the basis of her family status and that the respondent had failed to accommodate the complainant to the point of undue hardship. 

The Complainant, held the position of an AS-01 with CBSA. She filed a complaint with the Public Service Staffing Tribunal (PSST) alleging that the Respondent abused its authority by choosing a non-advertised process and not using an established pool of candidates to staff a Team Leader position. During the hearing, she added the allegation that she had also been discriminated against on the basis of her family status.

The Tribunal found that the Complainant established a prima facie case of discrimination.  The respondent’s explanation for its conduct was not reasonable given the facts of the case. The Complainant did not know that her family status was a factor in the decision not to appoint her to the position; in the circumstances, she had no reason to ask for accommodation. The manager, however, was aware of the complainant’s family obligations in the past, and did not make inquiries about availability to work overtime or whether she required any accommodation. The Tribunal found that the respondent discriminated against the complainant on the basis of her family status and that the respondent failed to accommodate the complainant. By discriminating against the complainant, the respondent abused its authority in the application of merit.

The Tribunal recommended that the respondent consult with the Commission to assess whether its delegated managers need training on discrimination and specifically, on discrimination and family status. The Tribunal indicated that it could apply its broad corrective powers under subsection 81(1) of the Public Service Employment Act when it finds that a complaint under s.77 is substantiated. These powers may include monetary awards to compensate victims of discrimination, or when the Tribunal determines that a Complainant has been discriminated against wilfully or recklessly. However, the Tribunal does not have jurisdiction to order the respondent to provide the complainant with an opportunity for an acting assignment.

The Tribunal found that the complainant was discriminated against on the basis of family status and should have the benefit of an individualized assessment of her need for accommodation, so that she is not deprived in the future of opportunities for advancement based on the assumption that she is unavailable due to her parental responsibilities.

Decision:

Rajotte v. President of the Canada Border Services Agency (2009) PSST 0025

Executive Summary:
The following case deals with s.13 of the CHRA, the communication of hate propaganda. Although the Tribunal upheld the complaint against Mr. Lemire on the merits, the Tribunal found that the legislation was inconsistent with freedom of expression contrary to s. 2(b) of the Charter. The Tribunal refused to apply the penalty provisions and did not issue any remedial order against Mr. Lemire.

Richard Warman brought a complaint alleging that Marc Lemire’s website, Freedomsite.org, violated section 13 of the CHRA on six discriminatory grounds. Although the complaint only referenced postings from Freedomsite.org, the Commission also examined evidence of postings on Stormfront.org and JRBooksonline.com. Mr. Warman provided this evidence during the initial investigation into the complaint. The Tribunal permitted evidence regarding both additional websites, as Mr. Lemire did not object.

The Tribunal applied the Supreme Court’s interpretation of “hate propaganda” and its approved definition of “hatred and contempt” in Canada (Human Rights Commission) v. Taylor , [1990] 3 S.C.R. 892 (Taylor ) to its analysis of the impugned messages. Before commencing its analysis, the Tribunal underscored the Supreme Courts’ caution to heed the "ardent and extreme nature of feeling described in the phrase “hatred or contempt”, and not allow "subjective opinion as to offensiveness" to supplant the proper meaning of the section. 

The Constitutional Challenge

Prior to the start of the hearing, Mr. Lemire filed a motion seeking to have ss. 13, 54(1) and 54(1.1) of the Act declared inoperative, as contrary to s.2(b) of the Charter, which protects freedom of expression.

In Taylor , the Supreme Court found that s. 13 of the CHRA infringes on s. 2 of the Charter; however, they found that s. 13 was justified under s.1, which ensures rights and freedoms, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The Commission and Attorney General conceded that s. 13 violates the freedom of expression guaranteed under the Charter and agreed that the applicable analysis was to examine whether the infringement was justified under s.1 of the Charter.  Although this was not the first time s. 13 had been challenged as unconstitutional, the Commission and the Attorney General argued that Mr. Lemire had failed to displace the findings in Taylor . 

Since the Supreme Court decision of Taylor in 1991, there have been several changes made to s.13 and its remedial provisions set out in s.54(1) of the CHRA. Prior to 1998, the Tribunal could only make an order under s.53(2)(a) after finding a s.13 complaint to be substantiated. As a result, a person who had been found to have engaged in such discriminatory practice could only be ordered to cease such behaviour and take measures in consultation with the Commission to prevent the same or similar practices from occurring in the future. After 1998, however, s.54(1) was replaced by a provision which allowed the Tribunal not only to issue a s.53(2)(a) order, but it could also order a respondent: a.) where the discrimination was wilful or reckless, to compensate a victim who was specifically identified in the hate message with special compensation of up to $20,000, pursuant to s.53(3), and b.) to pay a penalty of up to $10,000. Mr. Lemire stated that given these changes in the legislation, the decision in Taylor should not apply to this case.

The Tribunal examined the decision in Taylor , which had found that s.13 did in fact violate s.2(b) of the Charter, which was conceded by all the parties. Then, it looked at whether, like in Taylor , it could be saved under s.1, being a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”, by applying the two steps of the Oakes test, as put forward by the Supreme Court in 1986. In the first step, the Tribunal examined whether the objectives served by the measures limiting the Charter right or freedom must be sufficiently important to warrant it to be overridden.  At a minimum, these objectives must relate to concerns that are pressing and substantial in a free and democratic society. The second step involves the individual invoking s.1 must show the measures to be reasonable and demonstrably justified. This second step involves a three-part proportionality test; the measures must be rationally connected to the objective, they should impair the right or freedom as minimally as possible and there must be proportionality between the effects of the limiting measures and the objective. 

The Tribunal found that Taylor still applied in relation to the first step of the Oakes test.  However, it was in its analysis of the proportionality of the second step of the test that the Tribunal found that Taylor did not apply.  Prior to the 1998 amendments, the cease and desist order, which was the only remedy available, was identified as characteristic of the conciliatory, preventative and remedial nature of s.13, upon which the Supreme Court had based its decision in Taylor . The Tribunal found that the changes to the legislation in 1998 altered the remedial nature of s.13 making it more penal in nature, and can no longer be concluded to minimally impair the Charter right to freedom of expression. In addition, the Tribunal made note that the changes in s.13 have caused not only the legislative provision to be less remedial, but also altered the conciliatory manner in which s.13 complaints are processed.  Although the majority of complaints filed with the Commission are settled and only 11% proceed to a Tribunal inquiry, the Tribunal indicated that only 4% of s.13 complaints are settled, with 68% being referred to the Tribunal. 

Decision:

Richard Warman v. Marc Lemire, 2009 CHRT 26