Category Archives: Human Rights

At What Stage does the Duty of Self-Accommodation Arise in a Discrimination Analysis?

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Case Commented On: United Nurses of Alberta v Alberta Health Services, 2019 ABQB 255 (CanLII)

As noted in previous posts (see here), the definition of discrimination on the basis of family status has been extended recently to include recognition of childcare responsibilities (see e.g. Canada (Attorney General) v Johnstone, 2014 FCA 110 (CanLII), SMS Equipment v Communications, Energy and Paperworkers Union, 2015 ABQB 162 (CanLII), both cases discussed below). However, the point at which employers’ duty to accommodate is triggered remains controversial. In particular, the question remains as to how a complainant’s duty of self-accommodation should be dealt with in the discrimination analysis. Continue reading →

A Stressful Legal System Creates Vexatious Self-Reps

By: Drew Yewchuk & Christine Laing

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Case Commented On: Davis v Alberta (Human Rights Commission), 2019 ABQB 6 (CanLII)

Davis v Alberta (Human Rights Commission) is a judicial review of a decision by the Acting Chief of the Alberta Human Rights Commission (AHRC) to dismiss three complaints filed by Ms. Davis with the AHRC. There are no significant developments in human rights law in this decision, but it offers a good opportunity to consider the impact of administrative delays in dispute resolution mechanisms on individuals, especially self-represented ones. Davis also offers an example where the Alberta Court of Queen’s Bench was invited to find a self-represented litigant vexatious for the purposes of a costs decision.

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UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

By: Elysa Darling and Drew Lafond

PDF Version: UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

Decision Commented On: Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2020/2010

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act and is not intended to carry any derogatory connotations in this post.

Introduction

In a decision released on January 14, 2019, the United Nations Human Rights Committee (UNHRC) determined that the Government of Canada violated the International Covenant on Civil and Political Rights (ICCPR) by discriminating against First Nations women and their descendants through Status requirements under the Indian Act, RSC 1985, c I-5. The decision was one that the claimants, Sharon McIvor and her son Jacob Grismer, had been waiting for more than a decade since their case was first heard by the British Columbia Superior Court in 2007.

To understand McIvor and Grismer’s complaint to the UNHRC and the litigation that preceded it, a review of their family lineage and the many amendments made to the Indian Act will be reviewed in this post. We will also briefly review the Status provisions of the Indian Act and the litigation and legislative amendments that have resulted from claims of sex discrimination under the Act, review McIvor and Grismer’s litigation, and summarize the arguments made to the UNHRC and the Committee’s final decision.

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Discrimination and Harassment Case Highlights the Difficulties in Choosing the Appropriate Forum

By: Linda McKay-Panos

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Case Commented On: LL v Canadian Natural Resources Ltd, 2018 ABQB 879

LL sued her former employer Canadian Natural Resources Ltd (CNRL) for damages for its failure to protect her (as her employer) from ongoing sexual harassment and abuse. LL also claimed damages for constructive dismissal. CNRL applied to have the actions summarily dismissed or for an order to have portions of LL’s claims struck (at paras 1-3).

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Trial Within A Reasonable Time: A Farewell to the Transitional Period

By: Drew Yewchuk

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Case Commented On: R v Scher, 2018 ABCA 365; R v Carter, 2018 ABQB 657; R v Tetreault, 2018 ABCA 397

The Supreme Court rendered judgment in R v Jordan, 2016 SCC 27 on July 8, 2016. This post is a review of three recent Alberta decisions addressing Jordan, and a farewell to the transitional provisions, as it has been almost thirty months since Jordan was released. The transitional provisions apply only to time between when charges were laid and when Jordan was released. Few cases left in the system (though some decisions are likely still pending) will involve relevant argument on the application of the transitional provisions. The post ends with a caution about where the law might be headed.

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