University of Calgary Faculty of Law ABLawg.ca logo over mountains

Author: Linda McKay-Panos Page 15 of 23

Linda McKay-Panos is the Executive Director of the Alberta Civil
Liberties Research Centre. She taught Language Arts and Social Studies with the Calgary Board of Education for 7 years before returning to university to obtain a Law Degree. She practiced law for a time, before joining the Alberta Civil Liberties Research Centre in 1992 as a Research Associate. Linda is a sessional instructor in the Faculties of Communication and Culture and Law at the University of Calgary. Linda received her Bachelor of Education, Bachelor of Laws and Master of Laws degrees from the University of Calgary. Linda is the President of the Alberta Association for Multicultural Education and the Past President of the Public Legal Education Network of Alberta. Linda is the author of several publications dealing with civil liberties, access to information, human rights, discrimination, equality and related topics. Linda received the 2001 Suzanne Mah Award and an Alberta Centennial Medal in 2005 for her work in human rights in Alberta.

Pilot from Airdrie is Successful in Mandatory Retirement Case

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.

Justice Received After Nineteen Years. Delay in Walsh Case: What’s to blame?

PDF version: Justice Received After Nineteen Years. Delay in Walsh Case: What’s to blame?

Case considered: Delorie Walsh v Mobil Oil CanadaDecision on Remedy, September 2, 2010

In a previous blog about the Walsh case, I commented on the delay in this case and how it is an extreme example of why this issue deters some people from making a human rights complaint. Now that Ms. Walsh has received the remedy award in her case-which is in itself interesting to analyze-it is also interesting to analyze what the causes of the delay in justice were.

What are you Trying to Prove? Discrimination, Complainants and Human Rights

PDF version: What are you Trying to Prove? Discrimination, Complainants and Human Rights  

Case considered: Burgess v. Stephen W. Huk Professional Corporation, 2010 ABQB 424

In the past few years, it has become increasingly difficult to ascertain in human rights cases what exactly the complainant must prove in order to make out a claim of discrimination. The usual legal analysis for discrimination cases under the Alberta Human Rights Act, R.S.A. c. A-25.5 (“AHRA”) was established in Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley“) and is as follows:

1. Has the complainant made out a prima facie (sufficient to establish a case unless disproved) case of discrimination on a ground covered under the AHRA?

2. If yes, can the respondent nevertheless demonstrate that the contravention of the AHRA did not occur, was a bona fide occupational requirement, or was reasonable and justifiable in the circumstances?

3. If yes, there is no discrimination under the AHRA. If no, what is the appropriate remedy?

For many years, human rights commissions used the test for “discrimination” under s.15(1) of the Charter set out by the Supreme Court of Canada in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

Thus, the complainant has the burden of making out a prima facie case that he or she had experienced discrimination (as set out above) on the basis of a ground listed under an area (e.g., employment) covered under the legislation.

This procedure seemed to serve human rights commissions well, but in 1999 uncertainty was introduced when some commissions adopted the new and complex legal test for s.15(1) devised by the Supreme Court of Canada in Law v. Canada, [1999] 1 S.C.R. 497 (“Law“). The next several years of human rights cases often dealt with whether the test developed in Law was the proper test to be used in human rights cases. (See the discussion of this issue in my previous ABlawg post Human Rights Panel Faced with Mandatory Retirement (Again)). To further complicate matters, many legal experts believe the test for discrimination set out in Law has been modified by the recent Supreme Court of Canada decision in R. v. Kapp, 2008 SCC 41. In Burgess v. Stephen W. Huk Professional Corporation, Madam Justice M.T. Moreau does not mention the Kapp decision in her reasons, but she does set out a requirement that a complainant demonstrate the respondents’ knowledge of the grounds for discrimination. Arguably, this adds more complexity to this area of law.

Ms. Burgess was employed as a dental assistant starting in May 2005 in a clinic owned and operated by Dr. Huk (who was retired from dental practice). She was assigned to work primarily with Dr. Jacob, an associate dentist. Ms. Burgess was supervised by the office manager, Ms. Netter, and the head dental assistant, Ms. Brayer. Her duties included providing chair-side assistance to dentists (Dr. Jacob) during dental procedures, keeping operations sanitized, sterilizing equipment and managing patient flow (para. 5).

What’s in a name? Construction Owners Association of Alberta and Construction Labour Relations – An Alberta Association Concerned about “Employer” in the Alberta Human Rights Act

PDF version: What’s in a name? Construction Owners Association of Alberta and Construction Labour Relations – An Alberta Association Concerned about “Employer” in the Alberta Human Rights Act 

Case considered: Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2010 ABCA 184

It is fairly rare that two agencies not parties to an action would seek leave to intervene in a human rights appeal. I am not terribly surprised that the Alberta Human Rights Commission (formerly the Alberta Human Rights and Citizenship Commission) has appealed the 2009 Court of Queen’s Bench decision in Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 241. As I noted in my previous post on this case, the decision of Justice T.D. Clackson involving the interpretation of who is considered an “employer” under s. 7(1) of the Alberta Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (now Alberta Human Rights Act, R.S.A. 2000, c. A-25.5) appeared to be contrary to both existing case law and the spirit of “large and liberal” interpretation normally given to human rights legislation. Apparently, there are Albertan companies and associations who share an interest in the outcome of the appeal.

Supreme Court of Canada Upholds Constitutionality of Publication Bans in Bail Hearings, Media Outlets Unhappy

PDF version: Supreme Court of Canada Upholds Constitutionality of Publication Bans in Bail Hearings, Media Outlets Unhappy

Case Considered: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, an appeal from the Courts of Appeal of Ontario (Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59) and Alberta (R. v. White, 2008 ABCA 294).

The Supreme Court of Canada recently dealt with appeals from Ontario (Toronto Star Newspapers Ltd. v. Canada) and Alberta (R. v. White) wherein several media outlets challenged the constitutionality of s. 517 of the Criminal Code, R.S.C. 1985, c.C-46, which sets out when judges must impose a mandatory publication ban for evidence heard in bail proceedings. In the White case, the Alberta Court of Appeal had determined that while Criminal Code s. 517 violates freedom of expression under Charter s. 2(b), it can nevertheless be saved by Charter s. 1 as reasonable and justifiable in a free and democratic society (see my previous post on White).

Page 15 of 23

Powered by WordPress & Theme by Anders Norén