Category Archives: Human Rights

New Developments on the Test for Discrimination Under Human Rights Legislation: Time for Rehab?

By: Jennifer Koshan

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Cases Commented On: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39

Last month Shaun Fluker posted a comment on the Alberta Court of Appeal’s standard of review analysis in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (here). In this post I will comment on the Court of Appeal’s analysis of the test for discrimination under human rights legislation in Stewart, a matter I have commented on previously in relation to the same case at the Court of Queen’s Bench level (here), as well as in posts on other cases (see e.g. here, here and here). I will include in my analysis the Supreme Court of Canada’s decision from late July in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, which also deals with the test for discrimination. I will argue that the ABCA majority (Justices Watson and Picard) affirmed the wrong test in Stewart, particularly in light of the Supreme Court’s subsequent clarification in Bombardier. The approach of Justice O’Ferrall, writing in dissent at the Court of Appeal, is more in keeping with Bombardier and other recent jurisprudence. Continue reading →

Mandatory Retirement of School Bus Drivers Again Before Alberta Human Rights Tribunal

By: Linda McKay-Panos

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Case Commented On: Mortland and VanRootselaar v Peace Wapiti School Division No 76, 2015 AHRC 9

Once again, the Human Rights Tribunal has been asked to address the issue of mandatory retirement for school bus drivers in Alberta. In an earlier case involving a preliminary hearing, Pelley and Albers v Northern Gateway Regional School Division No 76, 2012 AHRC 2 (Pelly and Albers), the Tribunal held that the School Division was an “employer” for the purposes of the Alberta Human Rights Act, RSA 2000 c A-25.5 (AHRA), section 7. (See my previous post on Pelly and Albers).

Mortland and VanRootselaar were each school bus drivers employed by the Peace Wapiti School Division No 76. They were mandatorily retired at the end of the school year in which they attained the age of 65. They filed individual complaints of age discrimination under section 7 of the AHRC (employment) with the Alberta Human Rights Commission. The School Division argued that the “age 65 or less” standard for bus driver employment was a bona fide occupational requirement under subsection 7(3) of the AHRA.

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“Inspired by the Past, We Shape the Future”

By: Maureen Duffy

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Matter Commented On: Conference on “Interdisciplinary Approaches to Security in the Changing World,” and attacks by extremists on educational institutions, “Inspired by the Past, We Shape the Future”

Recent terrorist and/or militant incidents have focused on universities and schools, assumed, by some, to be a desirable target for extremists because of their symbolic value. Another motivation for such attacks may be that education itself is viewed as an antidote to the spread of extremism, and suppressing education may be seen as a means of gaining control over the population — a theory expressed by Malala Yousafzai, from Pakistan, who, at the age of 15, was shot in the face on a school bus for advocating for education for girls. She has famously called on the United Nations to send “books and pens, rather than tanks,” to parts of the world struggling with extremist violence. Military intervention and legal enactments may have some impact on extremism, but they can also often escalate the problem, rather than diminishing it, and they can give rise to new human-rights abuses. Education appears to be a much more promising tool in many cases, and that is likely why it is under attack.

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First Nations Education Funding: The Case of Sloan & Marvin

By: Elysa Hogg

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Sloan and Marvin Miller are twin children with Down Syndrome and because of where they live, their government refuses to provide them with the special education support that they need to go to school.

This story does not take place in Apartheid South Africa, or the Jim Crow South – Sloan and Marvin live in Ontario.

It was estimated by the Mississaugas of New Credit First Nation, where Sloan and Marvin reside, that $80,000 a year would be needed for the Miller twins to receive the education that they need. Aboriginal Affairs and Northern Development Canada (AANDC) denied a request for funding, and instead recommended that the Nation take the needed amount from their already insufficient $165,000 a year education budget. In June of 2009 the Mississaugas lodged a formal human rights complaint with the Canadian Human Rights Commission on behalf of Sloan and Marvin. The claim will be heard at the Tribunal sometime this year, but there has already been great speculation about the arguments both sides will raise.

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Alberta Court of Queen’s Bench Overturns Human Rights Tribunal’s Finding of Disability Discrimination in Employment

By: Linda McKay-Panos

PDF Version: Alberta Court of Queen’s Bench Overturns Human Rights Tribunal’s Finding of Disability Discrimination in Employment

Case Commented On: Syncrude Canada Ltd v Saunders, 2015 ABQB 237

Syncrude Canada Ltd v Saunders, 2015 ABQB 237, case highlights the role of the appeal court in reviewing Human Rights Tribunal decisions, and the effect of the claimant’s credibility on proving discrimination on the basis of disability or perceived disability.

Jeff Saunders was hired by Syncrude as a process operator, effective March 17, 2003, in its oil sands operation in Fort McMurray. Although process operators work in a dangerous environment, he had no prior experience. Saunders was required to undergo a health assessment for new hires, where he did not disclose any health issues. He denied ever smoking marijuana, denied consuming alcohol regularly and indicated he was a body builder who worked out regularly at the gym. He passed the company’s drug and alcohol tests. Usually, process operators commence employment with on-site training. After training, Saunders was assigned to a 128-day-cycle, with two days worked, two nights worked, two days off, two days worked, two nights worked and then six days off.

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