Annual Report 2011 - Page 6
Human Rights Issues in 2011
Equal Pay for Work of Equal Value
Ruth Walden v. Government of Canada
Ruth Walden worked as a medical adjudicator for the Canada Pension Plan. Medical adjudicators determine whether a person is eligible to receive the Canada Pension Plan (CPP) disability benefit. Given the level of expertise required for this job, all medical adjudicators employed by the federal government must be trained healthcare professionals. Ms. Walden is a registered nurse.
Ruth Walden and more than 200 other medical adjudicators working for the federal government filed a complaint with the Canadian Human Rights Commission against their employer on the ground of sex discrimination.
They argued that a separate group of federal employees, classified as medical advisors, were performing the same functions yet were paid at a higher rate. The medical advisors were predominantly male doctors.
The Commission participated in the case by representing the public interest at both the Tribunal hearings and in Federal Court.
In June 2011, the Federal Court of Appeal made a decision. Ms. Walden and her fellow medical adjudicators were awarded $2.3 million for pain and suffering caused by decades of discrimination and inequality of pay.
In April 2012, the Canadian Human Rights Tribunal will hear arguments on what level of compensation the nurses should receive for lost wages. The wage loss settlement could date back to 1978.
PSAC v. Canada Post
A 2011 Supreme Court decision marked the end of the longest pay-equity dispute in Canadian history.
It began in 1983 when the Public Service Alliance of Canada, the union that represents clerical employees at Canada Post, observed that their members were not receiving equal pay for work of equal value.
The union believed that the clerical work, performed mostly by women, was equal in value to the higher paying sorting and delivery work that was performed mostly by men.
The union filed a complaint to the Canadian Human Rights Commission on behalf of the group of female employees. The union argued that the wage gap between the two groups of Canada Post employees was discriminatory.
After a thorough investigation that lasted seven years, the Commission referred the complaint to the Canadian Human Rights Tribunal. The evidence collected during the investigation was so extensive that the Tribunal hearing lasted 400 days over the course of ten years. In 2005, the Tribunal ruled in favour of the employees and ordered Canada post to pay $150 million to the 2,300 women named in the complaint.
In 2008, the Tribunal’s decision was overturned by the Federal Court following Canada Post’s request for judicial review.
The Commission appealed the decision to the Federal Court of Appeal only to have it dismissed. The Commission then filed an appeal to the Supreme Court of Canada.
On November 17, 2011, after deliberating for twenty minutes, the Supreme Court rendered a unanimous decision and upheld the Tribunal’s 2005 decision.
Freedom of Expression and Hate Speech
In 2011, public discussion about Canada’s hate speech laws gained new momentum. Canadians on both sides of the debate voiced their opinions before the Supreme Court of Canada, in Parliament, and on the pages of Canada’s newspapers. At the centre of this important issue are questions about the limits of freedom of expression, the consequences of hate speech, and the role of Canada’s Criminal Code in protecting Canadians from hateful messages.
Adopting the Principles of Universal Design
The National Capital Commission constructed the York Street steps to provide people with a convenient path between the Byward Market and Parliament Hill.
Shortly after the steps were completed, Bob Brown, an Ottawa-based disability rights advocate, filed a formal complaint to the Canadian Human Rights Commission. He argued that the National Capital Commission did not take all modes of mobility into account when designing and constructing the staircase. People with disabilities or mobility impairments were excluded.
Following an investigation, the Canadian Human Rights Commission referred the case to the Tribunal. It also chose to represent the public interest in the case.
In August 2011, the case was settled. The parties agreed to create a universal accessibility committee. The committee, vice-chaired by Bob Brown, will look at all future National Capital Commission projects to ensure that the fundamental principles of accessibility and inclusion are incorporated into the design and building process. Although it took some years to reach this settlement, the outcome was hailed as a victory for the rights of persons with disabilities.
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Hateful speech must be punished By David Langtry, Acting Chief Commissioner, As published in the National Post on October 18, 2011. Two processes have rekindled public interest in the long-running debate over whether Canada’s hate laws are reasonable limits on freedom of expression. In one, the Supreme Court of Canada will rule on Saskatchewan’s hate laws in the case of William Whatcott, an anti-gay activist. And in Parliament, MPs will consider Bill C-304, a private member’s bill that would strip the Canadian Human Rights Act of its hate-speech provisions. The issue affects all of us. It requires us as a community to consider our tolerance of speech that vilifies and dehumanizes others because of race, religion or sexual orientation. Given the strong feelings on all sides, some historical context might be helpful. If you were in downtown Toronto back in the 1970s, you might have bumped into an elderly, articulate fellow in a tweed hat, handing out cards that invited you to phone a number. Dial it, and a voice on an answering machine accused Jews of an international conspiracy “against the white race.†The voice was that of the man in the tweed hat, an avowed fascist, a Canadian who supported Hitler during the Second World War. His name was John Ross Taylor. Taylor was never a household name. Yet he came to define the legal boundaries of the expression of hatred in this country for decades. Taylor’s messages passed through a loophole in Canada’s Criminal Code, which prohibits speech that incites racial hatred. An exemption for "private communications" allowed neo-Nazis to spread propaganda using the telephone. Across Europe and North America, white supremacist organizations were growing. They were increasingly bold in defying our laws and social order. Memories of our collective sacrifices to fight the Nazis were still warm, and yet, the cold shadow of the Holocaust was stirring. In Canada, where Parliament was debating the first ever federal human rights legislation, MPs voted for a provision designed to force Nazis like Taylor to stop. Section 13 of the Canadian Human Rights Act was meant to target only the most extreme expressions of hate, a defining principle narrowly upheld by the Supreme Court of Canada when Taylor challenged the law. Today, the Canadian Human Rights Commission rigorously applies the court’s "Taylor test" to assess whether something is "hate speech", or just offensive. Just after 9/11, at a time of challenge to the social order, Parliament broadened Section 13 to include hate on the Internet. Yet complaints about hate speech continued to be rare, amounting to a tiny fraction of the Commission’s caseload. Complaints almost exclusively concern individuals at the extreme margins of society who seek to dehumanize and vilify people on the sole basis of their belonging to a racial or ethnic group, or their sexual orientation. A notable exception was a complaint against Maclean’s magazine in 2007. The Commission examined the complaint, and dismissed it. Nevertheless, an image of the Commission as a censor of a free press persists in some quarters. Though I believe this is undeserved, I understand some of the reasons. Critics have said that our process of examining complaints is, by its very nature, punitive. But as servants of Parliament we are bound by our legislation to process complaints we receive. Yet if hate speech were a business line, we would be out of business. Age discrimination, discrimination against people with disabilities, the extension of human rights protections to Canada’s First Nations – these are the issues we work on every day. Because of Taylor, at the federal level Canada has not one but two legal instruments to pursue extremists who propagate hate. One is the Criminal Code. The second is the Canadian Human Rights Act. The Criminal Code requires the approval of an attorney general for a charge to be laid. This is an unusually tough test. It discourages prosecutions. Police forces are reluctant to invest resources in investigations they doubt will lead to a charge. Few have resources to invest in hate crime units. If MPs vote to repeal Section 13 of the Canadian Human Rights Act, as Bill C-304 proposes, perhaps Parliament should also make it easier for police to lay a charge based on evidence. Perhaps, too, it would be useful to ensure that police have the resources they need to gather that evidence. If the Canadian Human Rights Act is not the best vehicle to counter hate speech, Parliament should ensure the Criminal Code is up to the job. |
Equal Treatment for Canada’s Fallen Soldiers
In 2006, Corporal Matthew Dinning was serving as a military policeman in Afghanistan when he was killed by a roadside bomb.
As Corporal Dinning was not married, nobody in his family qualified for the Canadian Forces death benefit. Only spouses or common-law partners of fallen soldiers are eligible for this lump-sum payment of $250,000.
In 2007, Corporal Dinning’s father filed a complaint with the Canadian Human Rights Commission against Veterans Affairs Canada. He argued that the death benefit discriminates against single soldiers on the ground of family status. The Commission referred the case to the Canadian Human Rights Tribunal.
In November 2011, Veterans Affairs Canada recognized Cpl. Dinning’s girlfriend as his common-law spouse. As a result, she received the death benefit that had been previously withheld. It also meant that the case was dismissed by the Canadian Human Rights Tribunal, because technically, Corporal Dinning was no longer single.
Despite the fact that Mr. Dinning no longer had a case, the policy that treats fallen soldiers differently based on their marital status is still in place. This is why the Commission asked the Tribunal to make a ruling and clarify whether the policy for awarding the death benefit is discriminatory.
The Tribunal did not provide a final ruling and the issue remains unresolved.
Two Important Supreme Court Decisions
In late October 2011, the Supreme Court of Canada clarified the powers of human rights tribunals in Canada.
In British Columbia Workers’ Compensation Board v. Figliola, the Court ruled that, for the most part, people cannot come to a human rights tribunal to re-litigate issues that have already been considered. This means that, with the exception of a few unique circumstances, Canadian human rights tribunals cannot hear complaints that have already received a final decision by another adjudicative body such as a compensation board or labour board.
In Canadian Human Rights Commission and Mowat v. Attorney General of Canada, the Supreme Court of Canada found that the Canadian Human Rights Tribunal cannot award legal expenses or costs incurred by successful complainants. This means that while the Tribunal is authorized to award compensation for lost wages or pain and suffering, it cannot compensate a person for the cost of hiring a lawyer to represent him or her. The Commission is reviewing the operational effect of this decision.
A Human Rights Victory for Canada’s Aging Population
As Canada’s boomer generation ages, more and more people want to continue to work past the age of 65, whether for personal or financial reasons. For decades, both the Canadian Human Rights Act and Canada Labour Code contained provisions that made it legal for employers to force employees to retire once they reach a certain age, regardless of their ability to do the job.
Since 1979, the Canadian Human Rights Commission has called for repeal of the mandatory retirement provisions of the Canadian Human Rights Act. Many federally regulated employers as well as the federal public service abolished it on their own initiative. Yet the Commission continued to receive many age discrimination complaints related to mandatory retirement.
Late in 2011, the Government of Canada corrected this issue by repealing the mandatory retirement provisions in Canadian law with the passing of the Budget Implementation Act.
The Commission released a statement congratulating the Government for its decisive action in striking down mandatory retirement. "We’re not born with date stamps saying our fitness for work expires at 65", said David Langtry, Acting Chief Commissioner. "Age discrimination is discrimination, pure and simple".