Alberta Human Rights Information Service
April 19, 2017
In this issue:
Human rights case law: Court and tribunal decisions
Other human rights and diversity news
Publications and resources
HUMAN RIGHTS CASE LAW: COURT AND TRIBUNAL DECISIONS
1. Important court decisions related to human rights:
Summit Solar Drywall Contractors Inc. v. Alberta (Human Rights Commission), 2017 ABQB 215 (Alberta Court of Queen's Bench, March 27, 2017)
Alberta Court of Queen’s Bench upholds findings of discrimination by Alberta Human Rights Tribunal; directs Tribunal to reconsider certain damage awards
Mr. and Mrs. Goossen were drywall tapers. Mrs. Goossen was hurt in a workplace accident. Shortly thereafter Mrs. Goossen filed a human rights complaint against Summit alleging that Summit had terminated her employment because of her disability and further had failed in its duty to accommodate. Mr. Goossen’s contract was terminated shortly after his wife’s injury. Mr. Goossen filed a human rights complaint alleging discrimination on the ground of marital status. Summit claimed it was a shortage of work that precipitated Mr. Goossen’s termination. The Alberta Human Rights Tribunal found that Mrs. Goossen was discriminated against when her contract was terminated. The Tribunal also held that Mr. Goossen was discriminated against on the basis of family status when his contract was terminated shortly after Mrs. Goossen’s injury. General damages were awarded to both Mr. and Mrs. Goossen, and Mr. Goossen was awarded lost wages. Summit appealed the Tribunal decision to the Court of Queen’s Bench.
The Court of Queen’s Bench held that the Tribunal’s decision must be reviewed on a reasonableness standard and that the findings of the Tribunal that both Mr. and Mrs. Goossen were discriminated against, in contravention of the Alberta Human Rights Act were reasonable. There was evidence to support that Summit had not accommodated Mrs. Goossen’s injury to the point of undue hardship. The Court also held that there was evidence that showed linkages between Mrs. Goossen’s injury and Mr. Goossen‘s termination. There was also evidence that contradicted Summit’s position that there was a shortage of work at the time of Mr. Goossen’s termination.
The Court stated, however, that the general damage award to Mrs. Goossen should not have included consideration of Summit’s conduct at the hearing, which was already compensated for in the award of costs. The general damage award for Mr. Goossen was upheld. However, the Court decided that the lost wage award to Mr. Goossen did not properly consider the fact that there was no fixed term contract for the work. The Court directed the Tribunal to reassess the amount of the general damage award to Mrs. Goossen and the amount of the lost wage award to Mr. Goossen.
University of British Columbia v. Kelly, 2016 BCCA 271, 84 C.H.R.R. D/128 (British Columbia Court of Appeal, June 24, 2016)
British Columbia Court of Appeal upholds Tribunal decision regarding discrimination against postgraduate family medicine resident and restores general damage award
Dr. Kelly has Attention Deficit Hyperactivity Disorder – Inattentive Type and Non-Verbal Learning Disability and at times anxiety and depression. He was enrolled in a postgraduate family medicine program administered by the Faculty of Medicine, University of British Columbia (UBC), and spent part of his residency at St. Paul’s Hospital operated by the Providence Health Care Society (Providence). He was dismissed from his postgraduate family medicine program, and Providence terminated his employment. Dr. Kelly filed a human rights complaint against Providence, alleging discrimination based on mental disability.
The British Columbia Human Rights Tribunal (BCHRT) added UBC as a respondent. The BCHRT found that UBC had discriminated against Dr. Kelly on the ground of disability. Reinstatement and damages were ordered:
• $385,194.70 as compensation for lost wages;
• $75,000 for injury to dignity, feelings and self-respect; and
• compensation for expenses incurred as a result of the discrimination, a tax gross-up and pre-and post-judgment interest.
UBC appealed the decision. At the first level of appeal, the finding of discrimination was upheld, but the general damage award was set aside. On further appeal by UBC, the British Columbia Court of Appeal restored the tribunal’s decision in its entirety including the damage award. The Court of Appeal held that it was not for the courts to measure the extent of Dr. Kelly’s emotional hardship and that simply because the amount was outside the usual range did not mean there was a patently unreasonable error in the tribunal decision. With respect to another ground of appeal, the extent of the duty to accommodate, the Court stated that while there was no free standing duty to accommodate, both procedural and substantive aspects should be examined. Further, the Court of Appeal held that “… the goal of accommodation in a training program is not guaranteed success, but only the opportunity to try. It was not necessary for the respondent to demonstrate his ability to succeed despite his disabilities: see Boehringer Ingelheim (Canada) Ltd./Lteé. v. Kerr, 2011 BCCA 266 (CanLII) at para. 33.” The Court held that Dr. Kelly had not been provided with an opportunity to demonstrate his abilities with the benefit of reasonable accommodation.
Dunkley v. UBC and another, 2015 BCHRT 100 (upheld in its entirety 2016 BCSC 1383) (British Columbia Human Rights Tribunal, June 30, 2015; Supreme Court of British Columbia, July 26, 2016 )
Supreme Court of British Columbia upholds Tribunal decision regarding discrimination against dermatology resident
Dr. Dunkley is deaf and has required accommodations due to her deafness throughout her education. This includes accommodations while she earned her undergraduate degree at the University of British Columbia (UBC) and while at medical school at the University of Ottawa.
She applied for and was assigned to a dermatology residency at UBC at St. Paul’s Hospital, Providence Health Care (Providence). She applied for accommodations in her dermatology residence program, but after some delay the respondents indicated that they could not provide her with an interpreter. Dr. Dunkley filed a human rights complaint alleging the respondents were not accommodating her disability. The respondents defended on the basis that its estimate of the cost would be over $2.5 million dollars and that it could not afford to prioritize this over its other programs and residencies.
The British Columbia Human Rights Tribunal held that the above amount was unreasonably inflated and that no real concrete cost estimate had been performed. The Tribunal decided that prima facie discrimination had been established and the respondents had not justified its failure to accommodate.
The Tribunal’s remedies included: reinstatement of Dr. Dunkley to the program; wage loss for a period of months as a resident; and $35,000 general damages for injury to dignity and self-respect.
UBC and Providence brought petitions for judicial review of the tribunal decision to the Supreme Court of British Columbia (BCSC). The BCSC upheld the decision in its entirety, and the petitions for judicial review were dismissed.
2. The Commission recently released the following tribunal decisions:
Diane White and Kerry White (on behalf of K.W. (minor son)) v. Lethbridge Soccer Association
Diane White v. Lethbridge Soccer Association
Kerry White v. Lethbridge Soccer Association
Diane White and Kerry White (on behalf of K.W. (minor son)) v. Lethbridge Soccer Association
Diane White and Kerry White (on behalf of K.W. (minor daughter)) v. Lethbridge Soccer Association
(March 23, 2017; Melissa Luhtanen, Tribunal Chair)
Renee Mandziak v. Taste of Tuscany Ltd. and Medhat Salem (March 21, 2017; Kathryn Oviatt, Tribunal Chair)
1. Updated and new free resources now available from the Commission!
We are Alberta. Our diversity is our strength. Human rights are for all of us.
The Commission has updated this popular free resource and it is now available! "We are Alberta. Our diversity is our strength. Human rights are for all of us." is available in many formats: Flyer; Poster; Bookmark; Button; Sticker; and Magnet.
You can order these free resources, along with many other publications and resources using the Commission Publications Order Form.
The Commission now offers "Racism. Stop it!" stickers. You can order this free resource, along with many other publications and resources, using the Commission Publications Order Form.
2. Commission has revised Complaint Form and related resources
The Commission has revised the Human Rights Complaint Form and Guide and these related resources:
• Information for Complainants
• Information for Respondents
• The Human Rights Complaint Process: A guide for complainants
• The Human Rights Complaint Process: A guide for respondents
These resources have been revised to update information about the complaint process, particularly in relation to the process and criteria for accepting human rights complaints. As well, the revisions reflect the addition of gender identity and gender expression as expressly prohibited grounds of discrimination under the Alberta Human Rights Act.
3. Upcoming forums:
Human Rights in Employment Forum Series: Accommodating Mental Disabilities in the Workplace
The Commission is offering a forum on Accommodating Mental Disabilities in the Workplace.
Edmonton: May 3, 2017
Calgary: May 10, 2017
Read more about the forum and learn how to register.
4. Celebrate Law Day on April 22!
From the Alberta Law Day website:" Law Day is a national event every April that celebrates the signing of Canada's Charter of Rights and Freedoms. It is an occasion for the public to learn about the law, the legal profession and the legal institutions that form the cornerstones of Canadian democracy. Activities include mock trials, courthouse tours, open citizenship courts, as well as public speaking and mock trial contests aimed at junior high and high school students." The Commission will be displaying banners, brochures, information sheets and other materials related to human rights and diversity at the Law Day events in Edmonton, Red Deer and Calgary on April 22, 2017. Read more about Law Day and the planned events throughout the province.
5. Members of the Commission reappointed and new member of the Commission appointed: On January 18, 2017, the Lieutenant Governor in Council reappointed Joanne Archibald and William D. McFetridge, Q.C., as members of the Commission for a term to expire on January 16, 2020. Cherie Langlois-Klassen was appointed as a new member of the Commission for a term to expire on January 16, 2020.
You can read the Order in Council and the biographies of members of the Commission.
6. 2017 Diversity Leadership Award of Distinction: The Commission partnered once again with the Alberta Chambers of Commerce to offer the Diversity Leadership Award of Distinction, which is part of the Alberta Business Awards of Distinction program. On February 24, 2017, Mr. Robert Philp, Chief of the Commission and Tribunals, presented the 2017 Diversity Leadership Award of 160;Distinction to NorQuest College of Edmonton at an awards event at the Renaissance Edmonton Airport Hotel. NorQuest College was recognized for their efforts in creating a diverse and inclusive workplace. You can read more about the 2017 recipient.
7. Recently completed project supported by the Human Rights Education and Multiculturalism Fund:
The Alberta Civil Liberties Research Centre (ACLRC) developed free online resources for seniors and their service providers in order to reduce discrimination towards racialized seniors and staff in seniors’ residence facilities and seniors’ service organizations. Comprehensive literature reviews, environmental scans and seniors’ centre dialogues revealed that discrimination is emotionally harmful and destructive to both staff and residents. The research also identified and supported the need for education and educational resources.
The results of the research resulted in the creation of a three-part educational video with guidebooks, Seniors and Discrimination: Rights, Respect & Responsibility, that focus on understanding discrimination and human rights law, seniors’ perspectives on discrimination and how to respond to it, and guidance for service providers.
ACLRC is planning to transcribe the guidebooks into French, Hindi, Spanish, Urdu and simplified Chinese characters and to add closed captioning to the video.
8. The Commission in the community:
Harmony Brunch: On March 19, 2017, Mr. Robert Philp, Chief of the Commission and Tribunals, offered the keynote speech to over 200 guests attending the Harmony Brunch hosted by the Canadian Multicultural Education Foundation in Edmonton. The Chief spoke of how we, as Canadians, have much to celebrate as we become a more unified and inclusive nation, yet we also have to recognize some of the darker parts of our history, including human rights violations.
PUBLICATIONS AND RESOURCES
1. New website tracks hate crimes: The Alberta Hate Crimes Committee launched a new website, #StopHateAB. From their website: “We invite all Albertans to share their thoughts, experiences and ideas of how to address and end hate in our province. Share a story, dispel a stereotype or start a dialogue about how hate affects everyone in Alberta.”
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