Alberta Human Rights Information Service April 18, 2018

In this issue:
Human rights case law: Tribunal decisions
Commission news
Publications and resources


HUMAN RIGHTS CASE LAW: TRIBUNAL DECISIONS

1. Summary of a recent tribunal decision:
Horvath v Rocky View School Division No. 41, 2017 AHRC 13 (CanLII) (Supplementary Decision on Remedy Re: Production of Documents; August 10, 2017; William D. McFetridge, Q.C., Tribunal Chair)
Canada Pension Plan disability payments are not deductible from loss of income

Ms. Horvath, the complainant, was employed as a caretaker with the respondent, Rocky View School Division No. 41. She re-injured her shoulder at work while cleaning. She asserted that the respondent failed in its duty to accommodate the resulting disability when she was ready to return to the workplace. She was terminated from her employment following a period of receiving benefits and treatment through the Workers’ Compensation Board. Ms. Horvath filed a human rights complaint alleging that she had been discriminated in employment practices on the ground of physical disability. 

The Tribunal found that Ms. Horvath’s physical disability (a dislocated shoulder) had not been duly accommodated by the respondent. The Tribunal held that the duty to accommodate must include consideration of the injured worker's skills and abilities and is not limited by the type of job she was in at the date of her injury. Ms. Horvath was hired as a caretaker, but had run her own business, had relevant computer experience and had worked as a receptionist. To ignore these skills and limit her to caretaking jobs was a failure to accommodate her.The Tribunal awarded damages for a breach of the Alberta Human Rights Act and loss of income for the time period that Ms. Horvath could have been accommodated.

The Tribunal, however, directed that counsel for both parties provide further submissions and authorities addressing the remaining question of whether or not the Canada Pension Plan (CPP) disability payments Ms. Horvath received during her period of unemployment following termination should be deducted from her loss of income award. The Tribunal reviewed counsels’ written submissions and authorities before rendering its Supplementary Decision. The Supplementary Decision directed that CPP disability payments should not be deducted from Ms. Horvath’s loss of income award. 

Typically, any income which is earned during a period of unemployment following a wrongful or discriminatory dismissal is treated as sums which lessen or “mitigate” against a loss of employment claim. Thus, for example, it is typically expected that following a discriminatory dismissal any Employment Insurance income received will be deducted from a complainant’s loss of income award. Why wouldn’t the CPP disability payments received by Ms. Horvath also be considered to mitigate against her loss of income and therefore be deducted from her loss of income award?

The short answer is that CPP disability payments are paid owing to a disability and do not depend upon having incurred a loss of income. Such payments are benefits which are received not because of a loss of income, but due to the condition of being disabled. In other words, CPP disability payments are not intended to cover or “indemnify” a person against a loss of income. Thus, as pointed out in the Supplementary Decision, CPP disability payments fall under what the Supreme Court of Canada has referred to as “non-indemnity payments” [Ratych v. Bloomer, [1990] 1 S.C.R. 940]. The term “non-indemnity payment” emphasizes the need to prove a direct or causal relationship between compensation received and loss of income in order to support the claim that the compensation should be deducted. However, CPP disability payments can be paid even if someone is not suffering from a loss of income. CPP disability benefits are available to anyone who has made contributions toward CPP, is suffering from a disability and is under 65 years of age. The Tribunal Member found that CPP disability benefits are not intended to replace or mitigate against a loss of income and, therefore, should not be deducted from a loss of income award.

2. The Commission recently released the following tribunal decision:

  • Karin McLaughlan v. Lakeland College (February 8, 2018; Joanne Archibald, Tribunal Chair)
This tribunal decision can be accessed free of charge through the Canadian Legal Information Institute (CanLII) website.

COMMISSION NEWS

1. Upcoming Human Rights in the Workplace public workshops and forums
The Commission is offering the following public workshops intended for anyone wanting basic human rights information.

Edmonton
Date: May 3, 2018
Time: 9:00 a.m. to 4:00 p.m.
Location: Radisson Hotel Edmonton South, 4440 Gateway Boulevard
Fee: The workshop fee is $125.00 plus GST, totaling $131.25. Lunch is included.
You can register online for the May 3, 2018 public workshop.

Calgary
Date: May 23, 2018
Time: 9:00 a.m. to 4:00 p.m.
Location: Acclaim Hotel Calgary Airport, 123 Freeport Boulevard NE
Fee: The workshop fee is $125.00 plus GST, totaling $131.25. Lunch is included.
You can register online for the May 23, 2018 public workshop.

Red Deer
Date: June 13, 2018
Time:  9:00 a.m. to 4:00 p.m.
Location: Baymont Inn & Suites Conference Centre, 4311 – 49 Avenue, Red Deer, Alberta
Fee: The workshop fee is $125.00 plus GST, totaling $131.25. Lunch is included.
You can register online for the June 13, 2018 public workshop.

You can read more about the public workshops and also learn about customized workshops.

The Commission is offering the following Preventing Harassment in the Workplace forums:

Edmonton
Date: June 12, 2018
Time: 8:00 a.m. to 11:00 a.m.
Location: To be determined
Fee: $50.00 plus GST, totaling $52.50. Breakfast is included.

Calgary
Date: June 20, 2018
Time: 8:00 a.m. to 11:00 a.m.
Location: To be determined
Fee: $50.00 plus GST, totaling $52.50. Breakfast is included.
You can read more about the upcoming forums.

2. Commission releases 2016-17 Annual Report
The Commission has released its 2016-17 Annual Report. The report provides a summary of results achieved in the three areas of activity undertaken by the Commission: education and engagement, inquiry and complaint resolution services, and complaint adjudication. It also includes information about the legislative framework for the Commission and the Human Rights Education and Multiculturalism Fund, complaint statistics, biographies of the Members of the Commission, and listings of tribunal decisions made in 2016-17. Read the report.

3. Commission receives budget increase
The Government of Alberta has recognized the Commission's need for additional resources to help deal with rising caseloads. Again in 2016-2017, there was an increase in the number of human rights complaints received and accepted by the Commission. In keeping with the Government of Alberta’s commitment to improving access to justice, the 2018 Provincial Budget provided the Commission with an increase which will allow the hiring of additional staff.

4. Upcoming application deadlines for two grant programs
The Alberta Human Rights Commission administers grant funding that fosters equality and reduces discrimination. The Human Rights Education and Multiculturalism Fund provides the funding for these grants. Human Rights Project grants help non-profit organizations and public institutions make changes, so that all Albertans have the opportunity to participate equally in the social, cultural, economic and political life of the province without discrimination. This grant supports outcome-based community projects that address discrimination and barriers to equality for all Albertans, including Indigenous people, immigrants, racialized groups, religious minorities, gender and sexual minority groups, and persons with disabilities. The deadline for the Human Rights Project grant application is May 15, 2018. You can read more about the application process.



PUBLICATIONS AND RESOURCES


1. Accommodating substance abuse in the workplace: The Canadian Human Rights Commission offers the guide Impaired at Work: a guide to accommodating substance dependence. From the website: "The purpose of this guide is to help federally-regulated employers address substance dependence in the workplace in a way that is in harmony with human rights legislation. This guide outlines the rights and responsibilities of the employee, job applicants, the employer, unions and/or employee representatives."

2. Persons with disabilities: The Canadian Human Rights Commission offers the following reports related to persons with disabilities:

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