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High Impact Human Rights Cases

The Commission continued to represent the public interest by intervening in high impact cases in order to further human rights law for all Canadians. The Commission’s involvement in these sorts of cases supports its strategic objective of acting as a proactive and influential catalyst for moving forward on human rights issues. Our successes – and those of many other parties engaged in these cases – further jurisprudence to support human rights advances for all. And yet, a next step is always necessary: it is important for employers and service providers to inform themselves of these judicial rulings and adapt their future actions accordingly.

The Tribunal upheld the complaint filed by Brigitte Lavoie against the Treasury Board of Canada. The Tribunal found that the Treasury Board’s policy of not including maternity or parental leave in the assessment of the period of three years of service required to transfer from term to indeterminate status constituted discrimination against women, contrary to sections 7 and 10 of the Canadian Human Rights Act. The Tribunal ordered the Treasury Board to modify its policy, in consultation with the Commission.

The Tribunal found that the Band Council of a band predominantly comprised of Saulteaux members discriminated when it refused to hire a Cree member for the position of Director of Education.

The Eskasoni native Band owns a commercial fishing fleet. Its employees are all members of the Band. Due to widespread alcohol and substance abuse, the Band (as employer) has imposed a drug testing policy on the crews of the fishing vessels. The complainants tested positive for drug use. The Commission was able to negotiate a settlement for most of the complainants and came to an agreement with Eskasoni over the wording of its policy.

One of the complainants refused any attempt to settle his complaint. The Commission withdrew from this hearing as it had obtained a reasonable proposal for a settlement on both the s.7 and s.10 complaints. The Tribunal found that the complainant had not demonstrated that he was disabled (in this case drug dependant) or that he had been perceived by the Band as drug dependant. The Tribunal also found that the policy was reasonable and was indeed a Bona Fide Occupational Requirement. Both the s.7 and s.10 complaints were dismissed.

The Federal Court upheld the Tribunal’s decision finding that Terry Tremaine had infringed section 13 of the Canadian Human Rights Act. The Court found that the Tribunal’s decision was reasonable and that it properly balanced freedom of expression with freedom from hatred.

The Federal Court overturned the Tribunal’s decision, which had found that the NCC discriminated against persons with disabilities when it designed the York Street Steps without on-site access for persons with disabilities. The Court found that the NCC had not discriminated because it had provided an alternate access at another location. The Commission is appealing the decision.

The Federal Court overturned the Tribunal’s decision, which found that Canada Post had discriminated against women by paying employees at the CR-level unequal wages for work of equal value. The Court found that the Tribunal had applied the wrong standard of proof and found that there was no wage discrimination. The Commission is appealing the decision.

A recent trend of expanding the fora for bringing forward human rights issues provides enhanced access to human rights protections. The Commission did not participate in these cases; however they represent important developments, which have clarified the human rights landscape.

The Canadian Transportation Agency (CTA) found that a feature of the federal transportation network represents an obstacle to some persons with disabilities. Until this decision, persons with disabilities requiring either additional seating for themselves or for an attendant/companion traveler to assist them during a flight were required to pay for a second ticket.

The CTA held that Air Canada, its affiliate Air Canada Jazz, and WestJet had discriminatory policies that adversely impacted persons with certain disabilities by requiring them to pay more for necessary extra seating. It also concluded that the airlines could not demonstrate that accommodating this need would result in undue hardship. There was a second finding of discrimination in relation to the requirement that an attendant traveling with a person with disabilities pay additional fees at Gander International Airport and as required by the Air Transport Association of Canada.

The CTA ruled that the airlines must establish a "one person - one fare" regime for persons with disabilities who require additional seating to travel on domestic air services. The airlines were given one year to implement the decision.

In this decision, the Supreme Court of Canada clarified the test an employer must meet when claiming undue hardship in response to a request for accommodation. The Court stated that although the employer does not have a duty to change working conditions in a fundamental way, it does have a duty to arrange the employee’s workplace or duties to enable the employee to do his or her work if it can do so without incurring undue hardship.

Furthermore, the Court stated that an employer will have satisfied the undue hardship test if it can demonstrate that: the characteristics of an employee’s disability are such that the proper operation of the business is hampered excessively; or, if an employee with such a disability remains unable to work for the reasonably foreseeable future despite accommodation attempts. In summary, the Court concluded that the employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.