PDF version: For the Second Time, Federal Court of Canada Judge Sends Mandatory Retirement Case Back to Canadian Human Rights Tribunal 

Case considered: Air Canada Pilots Association v Kelly and Vilven, 2011 FC 120 (”Vilven and Kelly #2“)

Recently Justice Anne Mactavish of the Federal Court sent Air Canada Pilots Association v Kelly and Vilven, 2011 FC 120 (”Vilven and Kelly #2“), a mandatory retirement case, back to the Canadian Human Rights Tribunal for the second time. I have described the earlier cases here and here.

Previously, the Federal Court found that the Tribunal was in error when it ruled that section 15(1)(c) Canadian Human Rights Act, RSC 1985, c.H-6 (CHRA), which allows mandatory retirement, was not age-based discrimination. The Tribunal determined that section 15(1)(c) was age-based discrimination under the Canadian Charter of Rights and Freedoms (Charter), and that it could not be saved by Charter section 1. Second, the Tribunal held that even if section 15(1)(c) were saved by Charter section 1, Air Canada’s mandatory retirement policy did not come within the exception in the CHRA that allows (age) discrimination where it is a bona fide occupational requirement (BFOR).

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PDF version: Issue of “Employment” in Human Rights Cases Arises Yet Again 

Case commented on: 375850 Alberta Ltd. v Noel, 2011 ABQB 218

Recently, in the decision of Lockerbie & Hole Industrial Inc. v Alberta (Human Rights and Citizenship, Director), 2011 ABCA 3 (”Lockerbie”) the Alberta Court of Appeal changed the direction of human rights law in Alberta by providing a narrow definition of “employer” and “employment” for the purposes of the application of the employment discrimination provision in section 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5 (”AHRA“). See my earlier blog on that case here.

The Court of Queen’s Bench in the Noel case applies the Lockerbie analysis for determining whether the alleged discrimination occurred in the area of employment. Beverly Noel worked for Dy-Kel Services Ltd., a company involved in well testing. The company arranged and paid for Noel’s accommodation at Hamburg Open Camp [”the Camp”], owned by 375850 Alberta Ltd. The evidence at the Human Rights Tribunal indicates that Noel worked a shift on February 21, 2006, and returned to her room. She emerged from her shower unclothed to discover a camp maintenance employee, Jacob Chernish, standing in the doorway watching her. She told him to leave her room, and he did not, and replied that she had left her keys in the door. He also accused her of smoking marijuana in the room. The next day, Noel awoke in her bed to find Chernish standing in her room. He again accused her of smoking marijuana in her room. Noel informed her immediate supervisor at Dy-Kel what had occurred, and then the Camp manager, who told her that he would speak to Chernish. The Camp manager also referred her to Edwin Wiebe, a Director of 375850 Alberta Ltd., who was in Edmonton. She spoke to Wiebe on two occasions, but he hung up on her when she asked him to wait while she went to retrieve a letter of apology written to her on February 27, 2006 by Chernish. Noel was not able to contact Wiebe again (Noel at paras 3 to 4).

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PDF version: Once Again, ABCA deals with Jurisdictional Issue of Labour Arbitration Board vs. Human Rights Commission 

Case considered: Calgary (City) v Alberta (Human Rights and Citizenship Commission), 2011 ABCA 65

Previously, the Alberta Court of Appeal dealt with the issue of what would occur if both the Human Rights Commission and another administrative body (such as a labour arbitration board) might have jurisdiction over an issue. In two decisions released one right after the other, Calgary Health Region v Alberta Human Rights and Citizenship Commission and Diana Hurkens-Reurink, 2007 ABCA 120 and Amalgamated Transit Union, Local 583 v City of Calgary and Labour Arbitration Board, 2007 ABCA 121, the ABCA held that where two tribunals were available, the employee or his/her union could pursue either avenue for a remedy. However, the Court also made it clear that the first tribunal’s decision might be binding on the second tribunal. Consequently, if the labour arbitrator found that there was no discrimination in the case, that ruling would probably be binding on the Commission (if that process occurred later).

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PDF version: Alberta Court of Appeal Decides Syncrude not an Employer under Human Rights Legislation 

Case commented on: Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3

It is perhaps ironic that in a decision where the Human Rights Panel found that there had been no discrimination, one of the respondents used the occasion to appeal the finding that it was an employer under the (then) Alberta Human Rights, Citizenship and Multiculturalism Act (currently Alberta Human Rights Act, RSA 2000, c A-25-5), and therefore subject to the Act. Since the structure of the “employment” relationship at issue in this case is commonly practiced in Alberta, the Court of Appeal ruling on whether Syncrude was an employer could have a significant impact on Alberta human rights law.

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PDF version: Pilot from Airdrie is Successful in Mandatory Retirement Case 

Case considered: Vilven v Air Canada and Air Canada Pilots Association; Kelly v Air Canada and Air Canada Pilots Association, 2009 CHRT 24; Remedy: 2010 CHRT 27

Recently, an Air Canada pilot from Airdrie, George Vilven, together with pilot Neil Kelly, succeeded in challenging Air Canada’s mandatory retirement policy. Mandatory retirement in human rights law has seen some interesting developments over the years. There are currently no laws in Canada that force a person to retire. In addition, the federal and most provincial governments prohibit age discrimination in their human rights legislation. Nevertheless, mandatory retirement does exist in Canada, and whether you are forced to retire and when, depends on where you live.

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Case Considered: R. v. Northern Forage Inc., 2009 ABQB 439.

PDF Version: Who is a Farm Worker? And Why Does it Matter?

Alberta marked its 5th annual Farm Workers Day on August 20, 2009. As in previous years, the event provided an opportunity to advocate for equal protection for farm workers under Alberta’s labour and employment laws. Farm workers are currently excluded from the following laws: (1) protections regarding wages, overtime, holidays, and hours of work (see Employment Standards Code, R.S.A. 2000, c.E-9, section 2(4)); (2) mandatory coverage for workers compensation (see Workers’ Compensation Regulation, Alta. Reg. 325/2002, Schedule A); (3) work-related health and safety protections (see Occupational Health and Safety Act, R.S.A. 2000, c. O-2, section 1(s)); and (4) protections related to the unionization of workers (see Labour Relations Code, R.S.A. 2000, c. L-1, section 4(2)(e)). This makes Alberta one of the most lax provinces in Canada in terms of farm worker protection. Groups such as the Alberta Federation of Labour have called for an end to such exclusions, and a recent inquest into the fatality of agricultural worker Kevan Chandler led Judge Peter Barley to recommend that “paid employees on farms should be covered by the Occupational Health and Safety Act…” (at 7). Until the Alberta government amends the relevant legislation, however, questions may arise as to which workers are covered by the exclusions.

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Report considered: Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non-Status Workers (May 2009)

PDF version: Canada’s Temporary Immigration System

“If a person is good enough to work here, a person is good enough to stay here.” This was the sentiment expressed in the recently released Report of the Standing Committee on Citizenship and Immigration, entitled Temporary Foreign Workers and Non-Status Workers (40th Parl., 2nd Sess. (May 2009)). Canada’s Temporary Foreign Worker’s Program was established to meet short-term labour shortages in the Canadian economy. Despite this initial goal, it has actually become more of a long-term solution to labour shortages and for immigrants wishing to make Canada their home. Temporary Foreign Workers (TFWs) remain in Canada for longer than the intended period, but maintain their “temporary status” and the limited rights that go along with that.

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Case considered: Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 241, overturning Donald Luka v. Lockerbie & Hole Industrial Inc. and Syncrude Canada, Alberta Human Rights and Citizenship Commission, February 15, 2008 (Beth Bryant)

PDF version: To Employ or Not to Employ: Is That the Question?

An appeal of a Human Rights Panel (”Panel”) decision brings to the fore an issue that has arisen in many human rights cases. When there is a complaint of discrimination in the area of employment under s. 7 of the Human Rights, Citizenship and Multiculturalism Act, R.S.A 200, c. H-14 (”HRCMA“), who will be considered an “employer”? This is especially pertinent in the current marketplace in Alberta where workers are often contractors or sub-contractors.

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Case Considered: United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2009 ABCA 84

PDF Version: Employee Alcohol and Drug Testing Once Again At Issue

Alcohol and drug testing of employees is a tricky issue from a legal perspective. For example, in an earlier post, I commented on Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426, where in cases of pre-employment drug testing, there seem to be conflicting court decisions that make it challenging to implement effective policies. (Since the post was written, the Supreme Court of Canada denied the Alberta Human Rights and Citizenship Commission’s application for leave to appeal on May 29, 2008). What about the situation where an employer seeks to implement a new drug testing policy to apply to existing unionized employees as a condition of access to a construction work site?

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Cases Considered: Brewer v. Fraser Milner Casgrain LLP, 2008 ABCA 435;
Baum v. Calgary (City), 2008 ABQB 791

PDF Version:  Disability Discrimination in the Workplace

Two recent Alberta decisions (one from the Court of Queen’s Bench and one from the Court of Appeal) illustrate the significance of the process followed by decision-makers when analyzing whether, under the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (”HRCMA“), a person has been discriminated against, and, if so, whether the employer has accommodated the person to the point of undue hardship. As noted by Madam Justice Eidsvik in Baum v. Calgary (City), 2008 ABQB 791 (”Baum“): “Accordingly, the law on the duty to accommodate has become quite well developed however, the initial test [see #1 below] has been sparsely discussed until recently” (at para. 29). These two cases illustrate this observation.

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