Overview

Preventing Discrimination

Memoranda of Understanding

Operational Agreement
Between
Transport Canada
(Marine Safety Branch)
and
The Canadian Human Rights Commission

1. INTRODUCTION

1.1 The Canadian Human Rights Act was adopted by Parliament to give effect to the principle that all individuals should be treated equally. In recognition of this important principle, the Canadian Human Rights Commission ("the Commission") strongly supports preventive strategies aimed at reducing discrimination in the workplace and in the provision of goods and services to the general public.

2.1 Transport Canada’s Marine Safety Branch ("Transport Canada") and the Commission recognize that reducing discrimination requires a proactive and systematic approach, and that it is in the best interests of all parties to work together to resolve allegations of discrimination as early as possible. Consequently, Transport Canada and the Commission agree to take the following steps to prevent discrimination and address issues 2.2 and 2.3 of this agreement raised in any complaints of discrimination that may have been filed, or will be filed with the Commission or brought to its attention.

2.2 It is recognized that this Agreement has been entered into in response to a number of complaints resulting from the denial of Marine Medical Certification on the basis of mental illness.

2.3 It is further recognized that the sections of the Crewing Regulations related to the Marine Medical Certification process for seafarers are being revised; that a training and education program will be developed in order to sensitize Marine Medical Examiners (field and headquarters) to human rights principles; and that internal policies regarding the re-examination provisions of the new Marine Personnel Regulations, which are replacing the existing Crewing Regulations, may be established.

3.1 The Commission has provided Transport Canada with feedback on "Division 8: Medical Examination of Seafarers" of the draft new Marine Personnel Regulations. The Commission will make a representative available should any further regulatory consultation be required on these provisions for the duration of this agreement. Transport Canada is currently holding stakeholder consultations on these revisions and will recommend implementation. The pertinent amendments include but are not limited to:

• Removing blanket exclusions from section 63.1(1) of the existing Crewing Regulations that may automatically prohibit seafarers diagnosed with mental illnesses from obtaining Marine Medical Certification, and developing new criteria based on internationally recognized Marine Medical Certification and domestic human rights standards;
• Creating a procedurally fair appeal process for decisions made by Transport Canada following a review and/or re-examination of a seafarers medical status.

3.2 Both Transport Canada and the Commission agree to work together to develop an education and training program aimed at Marine Medical Examiners (field and headquarters) who conduct initial marine medical examinations. It is the intention of both parties that the resulting program shall become part of a presentation to be given annually at meetings of such practitioners. It is further agreed that the program shall be made available to all practitioners who consult the Minister on Marine medical issues. The training will focus generally on human rights principles and legal obligations and more specifically on the duty to accommodate persons with disabilities in the Marine safety context. This training will include an explanation of the pertinent regulations in force at the time and any applicable amendments. The cost for delivery of the training will be borne by Transport Canada.

3.3 Transport Canada agrees to work with the Commission to develop or revise internal policies and guidelines in order to ensure compliance with the Canadian Human Rights Act as it applies to mental fitness. This includes but is not limited to creating an internal policy for the re-examination of the medical status of a seafarer employed pursuant to s. 71 of the existing Crewing Regulations and s. 277 of the new Marine Personnel Regulations. The objective will be to ensure that re-examinations are completed only when necessary and for supported reasons.

3.4 With regard to any potential or actual complaints filed with the Commission after the

date of execution in regards to the denial of a Marine Medical Certificate on the basis of mental illness, both Transport Canada and the Commission will make efforts to engage the Commission’s alternate dispute resolution mechanisms such as the preventive mediation (pre-complaint) or mediation (post-complaint) process. It is understood that if no settlement is arrived at during this phase, the operational agreement does not impede a human rights complaint from being considered by the Commission under the Canadian Human Rights Act.

4.1 All notices required by this Operational Agreement shall be in writing and shall be sent by facsimile transmission, delivered in person or sent by prepaid courier. Notice to the Commission shall be marked to the attention of Director, Prevention Initiatives and Liaison Division. Notice to Transport Canada shall be marked to the attention of Director, Marine Personnel Standards and Pilotage (AMSP).

4.2 All notices so sent shall be deemed to have been received by the recipient on the date following the date the facsimile transmission was sent, or on the day following delivery thereof.

5.1 This Operational Agreement shall be in force for a period of one year from the date of execution.

5.2 This Operational Agreement shall be automatically extended at the end of the first term for

one further term of one year, unless notice of termination is given by either party. Any further extension shall be mutually agreed upon by both parties.

6.1 The Commission and Transport Canada agree that all terms of this Agreement shall remain confidential and that neither party shall disclose them, whether directly or indirectly, to anyone other than their legal representatives or financial advisors, provided these individuals have agreed to keep the information confidential with the following exceptions:

a) Where disclosure is required by law;

b) Where implementation requires disclosure to employees or the parties agent(s). This includes posting the agreement on the parties Intranet sites in order to facilitate implementation;

c) The parties recognize that there are other complaints in the Federal human rights system involving the denial of Marine Medical Certification to persons that have been diagnosed with mental illnesses. The parties agree that these terms may be disclosed to the Complainants and/or their agents, as well as to the Canadian Human Rights Tribunal in order to avoid duplicitous settlements and/or Tribunal orders. However, each complaint shall be assessed on its merits.

7.1 This Operational Agreement can be modified at any time with the agreement of both parties and may be immediately revoked by either party by written notice.

8.1 This Operational Agreement will enter into effect on the date of the later signature.

Robert W. Ward, Secretary General
Canadian Human Rights Commission
Signed in Ottawa this 11th day of July, 2006.

Original signed

Marc Grégoire, Assistant Deputy Minister, Safety and Security
Transport Canada
Signed in Ottawa this 31 day of July, 2006.