HUMAN RIGHTS ISSUES IN 2010
Discrimination complaints that the Commission refers to the Canadian Human Rights Tribunal are often systemic in nature. Systemic discrimination refers to situations where people are treated differently and adversely because of an established policy or practice.
Systemic discrimination cases are often connected to changes taking place in the broader social context. The Commission analyzes Canadian social and demographic trends, and the complaints it receives to better understand and anticipate how issues might affect human rights law and practice.
The Commission also identifies complaints that have the potential to clarify, influence, shape or define human rights law. The Commission participates in these cases before the Tribunal to represent the public interest.
This section highlights some of the current issues being raised by complainants that will have a significant impact on human rights law.
Inclusion for Persons with Disabilities
Issue People with disabilities continue to encounter barriers that prevent their full participation in Canadian society. What Happened James Peter Hughes complained to the Commission because his polling station was not accessible to people who could not use stairs. The Commission referred the complaint to the Tribunal for further examination. Outcome The Tribunal found that Elections Canada had accessibility policies in place. However, they had not been properly implemented. The Tribunal ordered Elections Canada to put systems in place to ensure accessibility for all voting Canadians. |
Quick Fact In 2010, 372 of the 853 complaints (44%) accepted by the Commission were related to disability, more than any other ground in the Canadian Human Rights Act. |
In 2008, James Peter Hughes, a person with impaired mobility, encountered a polling station that did not provide access to people with disabilities and thus obstructed his ability to exercise his right to vote. His complaint exposes an issue affecting all Canadians with disabilities.
Because of his mobility impairment, Mr. Hughes uses a walker. When he arrived at his polling station, a long flight of stairs blocked access to the voting booths. He looked for a ramp, but found only a locked door. Determined to vote, and with no other alternative, Mr. Hughes went down the stairs on the seat of his pants.
Mr. Hughes complained to the Elections Canada voting officer. The officer explained that Elections Canada did not have the funding to provide accessible voting locations for a by-election.
Mr. Hughes filed a formal complaint to Elections Canada. He also filed a complaint with the Commission. His complaint alleged that Elections Canada had discriminated against him by not ensuring that his polling station was accessible.
The Commission referred the case to the Canadian Human Rights Tribunal. The Council of Canadians with Disabilities participated in the Tribunal hearing as an “interested party.”
The Tribunal found that Elections Canada did have policies demonstrating their commitment to accessible voting and equal access to all polling stations. These policies had not been properly implemented.
The Tribunal ordered Elections Canada to put systems in place to ensure accessibility for all voting Canadians.
Elections Canada consulted with Mr. Hughes, the Council of Canadians with Disabilities and the Commission as the organization:
- developed tools and processes to ensure accessibility standards;
- implemented procedures to receive and process complaints; and
- trained their staff on all policies.
Discussion
The best way to avoid creating barriers for people is to carefully consider the needs of everyone from the outset. The 2007 Supreme Court of Canada decision involving the Council of Canadians with Disabilities and VIA Rail confirmed that service providers have a duty to be inclusive.6 This means including everyone from the beginning, whether designing a building, establishing a policy, or developing new technology.
The Supreme Court’s decision is in-line with the United Nations Convention on the Rights of Persons with Disabilities. The Convention acknowledges that inclusion is one of the keys to ensuring that people with disabilities are able to fully participate in society.
Inclusive Policy Development The Commission encourages all employers and service providers to apply the following approach when developing policies. 1. Establish the policy. Most organizations already have policies to be inclusive and prevent discrimination. 2. Test for discrimination. Test the policy or practice to determine if it treats certain people differently and adversely. Ensure that relevant data are collected during testing. 3. Adjust the policy. Examine ways to adjust policies to eliminate or mitigate any discrimination. In general, if policy adjustments cannot be made, alternative arrangements should be considered. Employers should consult with those negatively affected by the policy. This will help to determine the most appropriate course of action. If health, safety or cost issues can be demonstrated, a policy that is potentially discriminatory may still be justified. It is important to fully document these situations. This includes recording the evidence that led to the decision. Prepare employees to prevent discrimination. Ensure they are aware of the potential human rights implications of a particular policy. 4. Monitor for discrimination. It may not be possible to identify or predict all the situations that may lead to discrimination. Despite careful planning and testing, issues may still arise once a policy is in place. Ongoing monitoring and analysis is necessary. |
Mandatory Retirement and Age Discrimination
Issue Canada’s population is aging at an unprecedented rate. This demographic shift is changing our understanding of aging and retirement in Canada. What Happened Air Canada pilots, George Vilven and Robert Kelly complained to the Commission after they were forced to retire at age 60. The Commission referred the complaints to the Tribunal for further examination. Outcome The Tribunal ruled that the part of the Canadian Human Rights Act allowing mandatory retirement is a violation of the Charter of Rights and Freedoms. The Tribunal ordered Air Canada to reinstate the two pilots.7 |
Everyone has the potential to experience age discrimination. Vilven and Kelly v. Air Canada is the latest age discrimination case to be dealt with by the Tribunal.
George Vilven and Robert Kelly are two Air Canada pilots who were forced to retire at age 60, in-line with corporate policy. They filed complaints with the Commission arguing that this constituted discrimination on the basis of age. The Commission referred the complaints to the Tribunal.
The Tribunal ruled in their favour, stating that the part of the Canadian Human Rights Act allowing mandatory retirement is a violation of the Canadian Charter of Rights and Freedoms. Air Canada was ordered to reinstate the two pilots.
In its decision the Tribunal observed, “it is now clear that the workforce is aging and many individuals need and want to work past the mandatory retirement age. In light of this fact, it might be argued that preventing, rather than permitting age discrimination beyond the normal age of retirement has become a pressing and substantial need in society.”
While this case was making its way through the Tribunal process, a similar debate was beginning in Parliament. Bill C-481 is a Private Members Bill tabled in Parliament in 2010. If the Bill receives Royal Assent it would amend the Canadian Human Rights Act to prohibit federally regulated employers from setting a mandatory retirement age.
Discussion
The Tribunal ruling in the Vilven and Kelly case, and Bill C-481 illustrate that the social values and beliefs around age are changing. So too, is the concept of retirement. According to a recent Scotiabank study, 70% of Canadians who intend to retire plan to work during their retirement.8
All the provinces and territories that had mandatory retirement clauses in their human rights legislation have already repealed them.9 The Commission supports the repeal of this section of the Canadian Human Rights Act.
Quick Facts It is estimated that by next year, approximately 41% of working Canadians will be between the ages of 45 and 64. By 2021, 17.9% of the population will be 65 and over, and by 2041 this group will account for an estimated 23% of the population.10 Data collected from the Commission’s Dispute Resolution Branch, suggests that age discrimination has already started to have a significant impact on Canadian workplaces. This past year, 227 of the 853 complaints (27%) accepted cited age as one on the grounds of discrimination. Discrimination on the basis of age is prohibited by the Canadian Charter of Rights and Freedoms. However, the Canadian Human Rights Act permits employers to end an individual’s employment “...because that individual has reached the normal age of retirement for individuals working in positions similar to the position of that individual.” Over the past five years, the Commission referred 273 complaints of age discrimination to the Canadian Human Rights Tribunal. Almost all were related to mandatory retirement. |
Supporting Aboriginal Children
Issue First Nations child welfare agencies maintain they cannot provide the same level of support to families in crisis as agencies serving families off reserve, because of discrepancies in funding. What Happened The Assembly of First Nations and the First Nations Child and Family Caring Society of Canada filed a complaint with the Commission because First Nations child welfare organizations receive less funding than agencies serving children off reserve. The Commission referred the complaint to the Tribunal for further examination in 2009. Outcome The case is currently before the Tribunal. |
The Assembly of First Nations has long stated that First Nations child welfare organizations are under funded compared to agencies serving non-First Nations children. As a result, a greater proportion of First Nations children are being placed in foster care—often outside their communities—than in the general population.
The Assembly of First Nations and the First Nations Child and Family Caring Society of Canada filed a complaint with the Commission against Indian and Northern Affairs Canada. The complaint alleges that the formula for funding First Nations family service organizations discriminates against these agencies on the basis of race.
The Commission referred the case to the Canadian Human Rights Tribunal. This was the first complaint related to the Indian Act to go to the Tribunal, since Parliament repealed section 67 of the Canadian Human Rights Act in 2008. The Commission has taken an active role in the Tribunal hearings to represent the public interest.
The Attorney General challenged the jurisdiction of the Tribunal to hear the case. The Attorney General argues that the provision of funding to First Nations child welfare organizations is not a “service” as defined in the Canadian Human Rights Act.
A ruling is expected in 2011.
Discussion
The Tribunal’s decision may have an impact on a wide range of government-funded programs and services. Similar objections to Commission jurisdiction have already been raised regarding the system for status registration and the border crossing process for Aboriginals.
If it is determined that these services do not fall under the jurisdiction of the Canadian Human Rights Act, people in Canada may no longer be able to file discrimination complaints in relation to services provided by the government.
Family Status
Issue Changing family structures and an aging population are creating new challenges and pressures for families. Employers have a duty to accommodate employees in these situations. What Happened Fiona Johnstone complained to the Commission because her childcare needs were not accommodated by Canada Border Services Agency, her employer. The Commission referred the complaint to the Tribunal for further examination. Outcome The Tribunal ordered Canada Border Services Agency to end discriminatory practices and develop a plan to prevent future discrimination based on family status. |
With changing family structures and an aging population the need for accommodation is a reality experienced by many modern families.
In Canada, federally regulated organizations have a duty to accommodate employees when they are adversely affected based on one of the grounds of discrimination covered by the Canadian Human Rights Act.
Fiona Johnstone worked for Canada Border Services Agency. She was responsible for processing goods and travellers coming into Canada. The job involved working rotational shifts with irregular hours and unpredictable overtime requests.
After having her first child, Ms. Johnstone could not find childcare outside normal business hours. Ms. Johnstone’s husband also worked irregular shifts and often travelled for business.
She approached her employer and explained that she could only find childcare three days a week. She asked for a set three-day week of 13-hour shifts to maintain her full-time status.
Her request was denied on the basis that 13-hour shifts went against health and safety regulations. Her employer offered her three 10-hour shifts with a fourth shift of four hours. Ms. Johnstone accepted the set three-day week of 10-hour shifts, but declined the fourth shift. She explained to her employer that it was not practical or cost effective to find childcare for the four-hour shift.
Ms. Johnstone filed a complaint with the Commission in 2004. She alleged that the Canada Border Services Agency had discriminated against her on the ground of family status.
In her complaint, Ms. Johnstone alleged that Canada Border Services Agency’s policies had forced her to work part-time hours. As a part-time employee, she lost benefits, such as her pension entitlements, that she had received as a full-time employee.
The parties were unable to resolve the issue. The Commission referred the case to the Canadian Human Rights Tribunal for further examination.
Evidence submitted to the Tribunal showed that Ms. Johnstone had often worked extended shifts that involved overtime. The Tribunal determined that there were no practical health and safety concerns to stop Ms. Johnstone from working 13-hour shifts.
The Tribunal found that Canada Border Services Agency did not evaluate whether it could accommodate Ms. Johnstone’s family responsibilities, to the point of undue hardship, as is required by the Canadian Human Rights Act.
The Tribunal ordered Canada Border Services Agency to end discriminatory practices. The Agency was also required to develop a plan to prevent future discrimination based on family status. The plan must include written policies that cover individual assessments of family status requests.
Discussion
The duty to accommodate requires an employer or service provider to take steps to eliminate the different and adverse treatment of individuals, or groups, protected under the Canadian Human Rights Act.
An employer’s duty to accommodate extends only to the point of undue hardship. This means that accommodation may not be required if it would cost too much or create risks to health or safety.
In these instances, employers are required to demonstrate why accommodation is not possible. Documenting specific situations and collecting reliable data is necessary to prove that undue hardship exists.
The Commission advises and assists employers to develop flexible accommodation policies that can be adapted to meet the unique needs of each situation. This approach enables managers and supervisors to take the initiative and ensure employees are offered appropriate accommodation.
LOOKING AHEAD
Canadian society is constantly being reshaped by cultural, social, economic and technological changes. The Commission consults with stakeholders, conducts research and analyzes human rights complaints to identify and improve our understanding of human rights issues. These activities support the Commission’s efforts to raise awareness and address human rights issues that impact Canadian society.
In addition to our ongoing initiatives described in this report, below are some of the key initiatives that the Commission will be working on in future years.
Mental Health
A growing number of the disability complaints received by the Commission are for mental health reasons. In fact, 27% of the disability complaints received by the Commission in 2010 were related to mental health. The Commission is working with the Mental Health Commission of Canada to identify partnership opportunities. The objective is to promote awareness of the connection between mental health disabilities and human rights, reduce the related stigma and prevent discrimination.
Measuring Equality Rights in Canada
The Commission is developing the first report on equality rights in Canada. This report will provide a comprehensive picture of the equality-related issues facing people in Canada.
The Human Rights Impact Assessment
The Commission is partnering with Canada’s national security agencies to test its new Human Rights Impact Assessment guidelines. A Human Rights Impact Assessment is good strategic planning. This tool assists organizations to identify and eliminate potential discriminatory practices at the planning stage. The proactive approach supported by this instrument will help organizations be inclusive from the start. In turn, this will reduce the need to retrofit policies to accommodate people after the fact, saving organizations time and money.
Footnotes
- Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650 http://scc.lexum.org/en/2007/2007scc15/2007scc15.html
- At the time of publication, the pilots had been reinstated, but the case had been sent back to the Tribunal for re-examination.
- “Majority of Canadians Expect to Work After Retirement, Primarily to Stay Mentally and Socially Active: Scotiabank Study” http://www.cnw.ca/en/releases/archive/January2011/04/c7837.html
- CBC News “Mandatory Retirement fades in Canada” http://www.cbc.ca/canada/story/2009/08/20/mandatory-retirement-explainer523.html
- Data from Human Resources and Skills Development Canada: Labour, http://www.hrsdc.gc.ca/eng/lp/spila/wlb/aw/09overview_analysis.shtml