This Legal Report covers a broad range of issues dealt with by the Human Rights Tribunal, the Federal Court, the Supreme Court of Canada and other courts of record and administrative tribunals. Its sole purpose is to provide a review and discussion of recent decisions related to the Canadian Human Rights Act¹, the impact of the Canadian Charter of Rights and Freedoms ²on equality concerns, and other human rights legislation. It does not represent a legal opinion regarding the matters discussed, nor necessarily the views of the Commission.

The Report begins with a review of Tribunal decisions relevant to the resolution of complaints. These cases are ordered under the heads of discrimination alleged in each case. One such case concerns the impact of a 30 week cap on special benefits (illness, maternity and parenting) available under Employment Insurance.³ The lack of evidence supporting the reasonableness of this limitation was cited by the Tribunal in reaching the conclusion that the 30 week cap adversely affected a woman complainant whose pregnancy also coincided with illness. However, in a another case involving female complainants whose unemployment coincided with pregnancy, the Tribunal upheld the validity of a cap imposed on receiving a combination of regular and special benefits under the Employment Insurance Plan.⁴ The importance of evidence (both direct and circumstantial) in the establishment of a prima facie case, as well as the need for a respondent to provide a reasonable justification for a decision not to hire, is explored in another decision that turns upon its particular facts rather than the discriminatory impact of statutory provisions.

The mandatory inclusion in income (under the Income Tax Act⁵) of certain grants to disabled students is the focus of another decision of the Tribunal.⁶ It explores the public policy considerations behind special grants to disabled students, provisions in the Income Tax Act and their actual impact on the specific complainant, the Tribunal ultimately upholding the validity of the tax rule in question. Three other decisions reviewed illustrate the principle that an employer must make reasonable accommodation to a disabled employee up to the point of undue hardship. One involved stress and depression-related illness,⁷ and another dealt with the Armed Forces and its response to members diagnosed with heart problems,⁸ while the last involved extensive absenteeism due to a work-related injury. ⁹Alcoholism as a disability was recognized in another Tribunal decision,¹⁰ though on the facts of the case it was found to be extraneous to a refusal to hire. The treatment of transsexuals by Correctional Services, specifically its policies denying access to sex reassignment surgery and the placement of pre-operative transsexuals in penitentiaries as a function of their biological sex, was also examined in detail by the Tribunal.¹¹ In a carefully worded decision, the Tribunal identified those policy elements that were discriminatory based on sex and disability.

Cases involving race, ethnic or national origin provide an overview of evidentiary matters relevant to establishing a prima facie case of discrimination, issues surrounding systemic discrimination and its proof, the use of expert testimony, retaliatory acts, and the assessment of witness credibility. The establishment of a prima facie case was also central to the one decision included in this Report relevant to discrimination based on age, a decision that once again involved policies and practices of the Armed Forces (this time with respect to promotion from one rank to the next).¹²

A major decision of the Tribunal regarding the telephonic communication of hate messages completes this particular section of the Report.¹³ A crucial issue at the heart of this decision is whether or not messages repeatedly communicated by way of the Internet fall within the scope of the term Atelephonic@, found in section 13(1) of the CHRA. In deciding that they do, the Tribunal reviewed in detail past Supreme Court decisions relevant to hate propaganda and the underlying purposes of human rights legislation. The Tribunal also assessed the restrictions on freedom of speech that flow from sanctioning the communication of hate messages, concluding that any limitations imposed by section 13(1) are reasonable and demonstrably justified in a free and democratic society (within the meaning of section one of the Canadian Charter of Rights and Freedoms).

A variety of issues are included under sections dealing with Tribunal interim orders and procedural matters. Among other things, the decisions included here examine the applicability of the Canada Evidence Act ¹⁴(expert witnesses),¹⁵ rules governing access to medical records,¹⁶ the impact of a party=s withdrawal prior to the hearing,¹⁷ the application of the CHRA to the House of Commons,¹⁸ the impact of the Bell decision (regarding Tribunal impartiality and independence) on other hearings,¹⁹ the application of the CHRA to First Nations,²⁰ and questions regarding pre-hearing discovery of documents.²¹

Federal Court decisions related to the Commission=s exercise of its statutory duties and authority are also covered. When receiving complaints, conducting investigations and making decisions to proceed or not to adjudication, the Commission is obliged to respect standards of procedural fairness appropriate to its administrative functions. The cases discussed here range across the various dimensions of fairness and reasonable conduct that apply to the Commission=s processing of complaints, providing a synoptic view of the types of problems that may arise and the judicial responses to them.

The Federal Court also considers appeals from decisions of the Human Rights Tribunal. Recent cases covered in this section of the Report include the well known Bell decision that had placed in question the impartiality and independence of the Tribunal.²² That Federal Court (Trial Division) decision has now been overturned by the Federal Court of Appeal, thus resolving difficulties that had delayed the adjudication of complaints generally.²³ Other cases reviewed include one challenging the new qualifications for Tribunal members (on grounds that the new qualifications created bias), ²⁴a case that questioned the applicability of the CHRA to the House of Commons,²⁵ and various others involving fair process, questions of fact and law, and stays of procedure. Of particular importance for pay equity issues is a decision of the Federal Court upholding a Tribunal decision about the meaning to be given to the expression Asame establishment@. ²⁶The scope and meaning of this expression is central to the determination of comparator groups used to make comparisons between workers for the purposes of implementing section 11 of the CHRA.

The Report includes an examination of a number of judgments decided under the Canadian Charter of Rights and Freedoms. In one case, the termination of pension benefits to a surviving spouse upon remarriage (which occurred prior to the coming into effect of section 15 of the Charter) was challenged as discriminatory based on marital status. ²⁷The decision of the Nova Scotia Court of Appeal (rejecting the claim) explains the rule against retrospective application of the Charter to pre-Charter events, and explores the real nature of the distinction made between the plaintiffs and other remarried widows who benefited from the restoration of lost pensions. A decision of the Supreme Court of Canada is also included that deals with allegations of discrimination based on sexual orientation at a religiously-based university in British Columbia.²⁸ The case involved rules of conduct for students enrolled at the university which proscribed homosexual relations that the British Columbia College of Teachers used to deny full accreditation to the university education program. The case is noteworthy for the manner in which the Supreme Court balances freedom of religion against the right to equality in deciding that the British Columbia College of Teachers had erred in making its decision. Also originating in British Columbia is a decision of the British Columbia Court of Appeal that deals with mandatory retirement and discrimination based on age.²⁹While the Supreme Court of Canada dealt with this issue some years ago, the majority of the British Columbia Court of Appeal concluded that the Supreme Court decision did not stand for the proposition that all mandatory retirement schemes were valid if provincial human rights legislation allowed distinctions to be made on the basis of minimum or maximum age. It felt that the reasonableness of the mandatory retirement plan at issue in the case had to be assessed under section one of the Charter, even though British Columbia human rights legislation permitted the type of age discrimination reflected in the retirement plan.

Two decisions of administrative tribunals are also included in this section of the Report. One deals with the decision of an Umpire under the Employment Insurance Act³⁰ that the minimum requirement of 700 hours of employable earnings for access to regular or special benefits has a discriminatory impact on women. ³¹The other deals with a decision of the Canadian Transportation Agency regarding whether or not obesity should be considered a disability within the meaning of the Canadian Transportation Act.³² Finally, although the issues involved do not engage equality rights directly, the Supreme Court of Canada decision in R. v. Latimer,³³ concerning an accused=s second degree murder of his severely handicapped daughter, is included. The decision is noteworthy for the Court=s interpretation of what constitutes cruel and unusual punishment under the Charter, and the comments the Court made about the vulnerability of the disabled victim.

Finally, the Report concludes with a review of some important matters relating to international human rights law. That section discusses Canada’s participation in the creation and implementation of some international human rights covenants as well as some case law where international human rights conventions have been applied.

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End Notes