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).