Category: Human Rights Page 22 of 32

Why Canada should Address Jorge Vinicio Orantes Sosa’s Alleged War Crimes before Extraditing Him to the U.S.

On June 29, 2011

PDF version: Why Canada should Address Jorge Vinicio Orantes Sosa’s Alleged War Crimes before Extraditing Him to the U.S.

This summer, Jorge Vinicio Orantes Sosa will fight extradition from Alberta to California to face immigration charges. Chief Justice Wittman will preside over the extradition hearing which been set to take place from August 16 to 17, 2011 at the Court of Queen’s Bench. This article suggests why Jorge Vinicio Orantes Sosa should have been first charged and tried in Canada for his alleged participation in war crimes during the Guatemalan civil conflict, before being extradited on lesser immigration charges.

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

By Linda McKay-Panos

On June 2, 2011

In Human Rights, Labour/Employment

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).

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

By Linda McKay-Panos

On May 17, 2011

In Human Rights, Labour/Employment

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).

Access to Justice and Human Rights Cases

By Linda McKay-Panos

On March 17, 2011

In Access to Justice, Administrative Law, Human Rights

PDF version: Access to Justice and Human Rights Cases

Case Considered: McClary v Geophysical Services Inc., 2011 ABQB 112

Not being able to afford legal representation occurs quite frequently in civil and criminal legal cases. Some individuals choose to self-represent-either because they cannot afford legal counsel, or because they want to present their own cases. Inability to afford legal counsel has become a critical problem that leads to an acute lack of access to justice in Canada. In Alberta, recent cuts to the Legal Aid program will likely have serious effects on people with both civil and criminal issues. Even in tribunal matters, or matters where one is not required to be legally represented, such as the human rights process in Alberta, not having legal representation can have important consequences, both for the courts and for the litigants. While in some matters at the Commission (and later on appeal to the courts), the Act permits counsel to be assigned to represent and advise complainants, McClary was not such a matter. Also, it is important to note that in all matters before the Commission, respondents must hire their own legal representation should they desire it. The limited availability of legal counsel for parties in human rights cases exists partly because the human rights process is supposed to be user-friendly and low-cost to complainants and respondents.

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

By Linda McKay-Panos

On March 3, 2011

In Human Rights, Labour/Employment

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).