Articles

There have been some interesting developments from the courts and the Human Rights Tribunal in the past several months. It was a difficult choice, but the following five decisions are perhaps the most noteworthy, particularly for the employment and labour law bar.

In Stewart v. Elk Valley Coal Corp., the Supreme Court of Canada has upheld a decision of the Alberta Human Rights Tribunal (Tribunal) which concluded that an employee who had a cocaine addiction was not dismissed because of that addiction; rather, he was dismissed for breaching his employer’s Alcohol, Illegal Drugs & Medical Policy (Policy). No prima facie discrimination was found and the decision of the Tribunal dismissing the employee’s complaint was therefore reasonable.

Despite the Ontario Court of Appeal’s guidance in its seminal ruling on racial profiling in R v. Brown fourteen years ago, this continues to be a pervasive and widespread issue. This was highlighted in a recent joint program held by the OBA Criminal Justice and Constitutional, Civil Liberties, and Human Rights Law Sections.

In February, 2017, the plaintiffs’ months-long trial was set to begin before the Honourable Justice Lederer. Following a recently announced settlement, lawyer Phil Tunley provides insights about trial preparation, client management and advancing Charter claims in the context of some of the worst human rights abuses ever litigated in Canada.

Note on Elmardy v. Toronto Police Services Board - a recent decision by Ontario's Divisional Court, which awarded $50,000 for Charter breaches against the TPSB and a police officer in its employ.

In August, 2016, the Prime Minister appointed an independent advisory board to review applications and propose candidates for a vacancy on the Supreme Court of Canada. The committee presented a list of qualified candidates to the Prime Minister, resulting in the appointment of Mr. Justice Malcome Rowe of Newfoundland to the Court in October 2016. The Independent Advisory Board reported to Parliament and publicly released a report of its process in November, 2016.

The principle of non-discrimination is now well established in Canadian human rights law. Each of the federal, provincial, and territorial governments prohibit discrimination in the provision of goods, facilities, services, and accommodation, or some combination thereof. While this principle is rightly considered to be within the domain of human rights law, a non-discrimination principle also exists in a very different context: transportation law.

On Friday, February 10, 2017, the Constitutional, Civil Liberties and Human Rights Law Section (“CCLHR”) hosted a program on human rights law in the provision of services. The program was chaired by Fiona Campbell, an Associate at Goldblatt Partners (Ottawa), Nicola Simmons, a Partner at Keel Cottrelle LLP, and Jessica Young, Senior Legal Counsel at eHealth Ontario. The following are some highlights of the program.

The Ontario Human Rights Commission recently released a policy position on medical documentation and disability related accommodation. While not binding on employers, housing providers, and service providers, Commission policies provide insight into the Commission’s position, which accommodation providers can consider in developing and implementing their own human rights policies and in addressing any human rights disputes, which may arise.

On February 7, 2017, the Federal Liberal government officially confirmed its commitment to reinstate the Court Challenges Program. The Program, cancelled in 2006 within weeks of the election of Stephen Harper’s first minority government, provided funding to individuals and groups seeking to enforce constitutional minority language rights and equality rights.