Category: Human Rights Page 15 of 32

By: Linda McKay-Panos

PDF Version: Supreme Court Limits Employment Relationship in Human Rights Cases

Case commented on: McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39

In an earlier post, I expressed hope that in McCormick, the Supreme Court of Canada would clear up the issue of “employment” in human rights cases. They have certainly spoken, but perhaps have not cleared up the issue in the way I was hoping they would.

Until recent times, employment (i.e. the legislative terms “employ”, “employee”, “employer”) was given a large and liberal interpretation, in keeping with the notion that human rights law is quasi-constitutional. For example, an employment relationship would be found to exist for human rights law, where it might not be found for tax law. The trend of narrowing the interpretation of employment may contradict the educational and remedial purposes of human rights law. Concerns about this trend in law may explain why several human rights commissions —including Alberta’s—intervened in this Supreme Court of Canada case.

Federal Court of Appeal Clarifies Requirements for Family Status Discrimination

By Linda McKay-Panos

On May 20, 2014

In Human Rights

By: Linda McKay-Panos

PDF Version: Federal Court of Appeal Clarifies Requirements for Family Status Discrimination

Case commented on:Canada (Attorney General) v Johnstone, 2014 FCA 110 (Johnstone, 2014)

In an earlier post (see here) which discussed the case of three women who argued that they were discriminated against on the basis of family status, I included reference to another family status case where a new human rights hearing was ordered (see Johnstone v Canada (Attorney General), 2007 FC 36, [2007] FCJ No 43 (Johnstone); affirmed in 2008 FCA 101, [2008] FCT No 427 (Fed CA)). The Federal Human Rights Commission referred the matter to the Canadian Human Rights Tribunal (CHRT), and in 2013, both the CHRT and the Federal Court agreed that the Canadian Border Services Agency (CBSA) had discriminated against Fiona Ann Johnstone on the ground of family status, by refusing to accommodate her childcare needs through work schedule changes. The CBSA appealed the matter to the Federal Court of Appeal. The Women’s Legal Education and Action Fund (LEAF) intervened in the Johnstone case on appeal, arguing that discrimination on the basis of family status is closely related to sex discrimination because most caregivers in Canada continue to be women. (See LEAF Factum here).

A Vital Judgment: Upholding Transgendered Rights in Alberta

By Jennifer Koshan

On May 7, 2014

In Constitutional, Human Rights

By: Jennifer Koshan

PDF Version: A Vital Judgment: Upholding Transgendered Rights in Alberta

Case commented on: C.F. v Alberta, 2014 ABQB 237 (CanLII)

Alberta’s Director of Vital Statistics interpreted her home statute, the Vital Statistics Act (RSA 2000, c V-4 (Old VSA), later repealed and replaced by SA 2007, c V-4.1 (New VSA)) in a way that required transgendered people to have genital reconstructive surgery in order to be eligible to have the sex on their birth certificate changed. C.F., a trans female, challenged this interpretation as contrary to her rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter). In a ground breaking decision released on April 22, 2014, Justice B.R. Burrows of the Alberta Court of Queen’s Bench found in favour of C.F. and ordered the Director to issue her a new birth certificate. The Alberta government has included amendments to the Vital Statistics Act in section 9 of Bill 12, the Statutes Amendment Act, 2014, which was introduced in the legislature on May 5, 2014.

Seasonal Workers and Discriminatory Benefits: The NWTCA Provides Some Clarity

By Jennifer Koshan

On April 8, 2014

In Human Rights

By: Jennifer Koshan

PDF Version: Seasonal Workers and Discriminatory Benefits: The NWTCA Provides Some Clarity

Case commented on: NWT (WCB) v Mercer, 2014 NWTCA 01 (Can LII)

This decision from the Northwest Territories Court of Appeal was passed on to me by an ABlawg reader in response to one of my recent posts on the ongoing uncertainty regarding the test for discrimination under human rights legislation. The decision is important in several ways. First, it finds that the standard of review for a decision on discrimination is reasonableness. Second, it affirms the application of the prima facie test for discrimination, most recently discussed by the Supreme Court of Canada in Moore v British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360. Third, and relatedly, it indicates that the government’s objectives for a particular statute should be considered at the justification stage of analysis rather than under the prima facie discrimination stage. Fourth, it finds that seasonal workers can be seen as a group protected by human rights legislation under the ground of social condition (which includes source of income). I will elaborate upon all of these findings in this comment.

Hate Speech and Human Rights in Alberta

By Jennifer Koshan

On March 26, 2014

In Human Rights

By: Jennifer Koshan

PDF Version: Hate Speech and Human Rights in Alberta

Motion commented on: Motion 502 (Alberta Legislative Assembly, March 17, 2014)

It was a tumultuous time in the Alberta Legislature last week, culminating with the resignation of Alison Redford as Premier (for an excellent recap see Susan on The Soapbox). And of course there were significant events at the national level as well, with the resignation of Jim Flaherty as finance minister and the Supreme Court of Canada’s decision that Marc Nadon was ineligible for appointment to its ranks. Readers therefore may be forgiven if they missed last week’s debate in the Alberta Legislature on the repeal of section 3(1)(b) of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA).