Alberta Human Rights Information Service January 31, 2018

In this issue:
Human rights case law: Court and tribunal decisions
Commission news

HUMAN RIGHTS CASE LAW: COURT AND TRIBUNAL DECISIONS

1. Important court decision related to human rights:
British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (Supreme Court of Canada, December 15, 2017)
Tribunal has jurisdiction to hear complaint regarding employment

The complainant, Mohammadreza Sheikhzadeh-Mashgoul, worked for Omega and Associates Engineering Ltd. The respondent, Edward Schrenk, worked at the same worksite for a different company and some of his work was overseen by Omega. Mr. Schrenk was fired for making racist and homophobic slurs aimed at Mr. Sheikhzadeh-Mashgoul. Even after Mr. Schrenk was fired he continued to send derogatory emails to the complainant. The British Columbia Human Rights Tribunal accepted a complaint alleging that Mr. Schrenk had discriminated against the complainant in employment. Mr. Schrenk argued that the complaint should be dismissed because he was not in an employment relationship with the complainant, and therefore the Tribunal did not have jurisdiction to hear the matter.  Section 13(1)(b) of the British Columbia Human Rights Code says, “A person must not … discriminate against a person regarding employment or any term or condition of employment.”

The Tribunal found that it had jurisdiction to hear the complaint. This decision was upheld by the British Columbia Supreme Court, overturned by the Court of Appeal and appealed, by Mr. Schrenk, to the Supreme Court of Canada (SCC).

The majority allowed the appeal reinstating the Tribunals’ finding that it had jurisdiction in the complaint. Justice Rowe, writing for the majority, examined the wording in section 13 of the Code and found that “regarding employment” did not restrict who is responsible for discriminatory conduct, but defines that there must be a nexus between the conduct and employment-related activities. The purpose of the Code provides that an “expansive and not a restrictive approach” be taken in this analysis. Rowe, J. stated:                  

[56] In my view, while the person in control of the complainant’s employment may be primarily responsible for ensuring a discrimination-free workplace — a responsibility that is recognized in s. 44(2) of the Code — it does not follow that only a person who is in a relationship of control and dependence with the complainant is responsible for achieving the aims of the Code. Rather, the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions. This means that, in addition to bringing a claim against their employer, the complainant may also bring a claim against the individual perpetrator. The existence of this additional claim is especially relevant when the discriminatory conduct of a co-worker persists despite the employer having taken all possible steps to stop it.


The Chief Justice, writing for the dissent, found that the Tribunal did not have jurisdiction and that the Code distinguished between interactions among private individuals and activities in certain designated areas such as employment.

2. Recent tribunal decisions
Summaries of recent important tribunal decisions:

Goossen v. Summit Solar Drywall Contractors Inc., 2017 AHRC 20 (CanLII) (Reconsideration Decision)
Tribunal reconsiders hearing decision after referral from Court of Queen’s Bench

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.

The Reconsideration Decision clarified that in fact the Tribunal’s focus was not on Summit’s conduct during the hearing, but rather its poor treatment of Mrs. Goossen after she was injured, which has been held in the Court of Appeal decision of  Walsh v. Mobil Oil Canada, 2013 ABCA 238 (CanLII), to be properly compensable in damages for injury to dignity. The Tribunal stated in the Reconsideration Decision:

[31]      Being forced into an uphill battle with WCB as well as the fear developed in relation to sacrificing her own treatment so as not to jeopardize her husband’s position with Summit are particularly damaging when already dealing with a life altering injury. Reducing Mrs. Goossen’s damages to less than Mr. Goossen’s damages marginalizes Mrs. Goossen’s experience. The impact on Mrs. Goossen was at least as significant as the impact on Mr. Goossen.
 
[32]      Having reconsidered the circumstances, I adhere to the Court’s direction and order general damages for injury to dignity to Mrs. Goossen in the sum of $19,500.

With respect to the Tribunal’s award of lost wages to Mr. Goossen, the Court stated that the test utilized by the Tribunal assumed Mr. Goossen would have worked at Summit continuously for three years at forty hours per week and this did not take into account certain contingencies, so the Court found that it was an unreasonably high award. In the Reconsideration Decision, the Tribunal clarified that this was not the test that was used. The Tribunal referred to its earlier decision on lost wages (2016 AHRC 10), which had not been referenced by the Court. As a result, Mr. Goossen’s award for loss of wages was further reduced.

Landry v. Vegreville Autobody (1993) Ltd., 2017 AHRC 19 (CanLII)
Tribunal finds discrimination on basis of religious beliefs, sexual orientation, marital status and race

The complainant, Mr. Landry, is of Dene First Nations’ heritage and is legally married to his husband. The respondent, Vegreville Autobody, is owned by Myron Hayduk and two others. Mr. Hayduk was also the Mayor of Vegreville at the time of the complaint. Mr. Landry interviewed for a job with Vegreville Autobody. On the basis of questions and comments which arose during his interview, Mr. Landry alleged that he did not get the job due to Mr. Hayduk’s discriminatory position toward Mr. Landry’s race, religious beliefs, marital status, and sexual orientation contrary to section sections 7(1)(a) and 8(1) of the Alberta Human Rights Act. 

Mr. Landry met Mr. Hayduk for the job interview that resulted in the human rights complaint. Among other questions, Mr. Hayduk asked Mr. Landry what he would do if a customer had an issue with Mr. Landry’s sexual orientation. Further, Mr. Landry alleged that Mr. Hayduk went on to comment that “Natives” are in the minority in Vegreville, and he asked Mr. Landry if he believed in God. Mr. Landry estimated that 80 per cent of the time had been spent by Mr. Hayduk asking questions about or commenting on religion, marriage, race, sexual orientation and other matters that had nothing to do with the job. Mr. Landry was later advised that he was not selected for the job. The Tribunal found that the position had been awarded to a woman who appeared, to Mr. Hayduk, to be Caucasian and had none of the “distinguishing Code-related features” of Mr. Landry. 

After the interview, Mr. Landry began to suffer from depression and testified that he no longer wanted to live near Vegreville, did not want to get out of bed, neglected his studies, became uncomfortable going out in public and withdrew, resulting in putting a strain on his marriage. The Tribunal also accepted a psychologist’s evidence that the interview had triggered Mr. Landry’s pre-existing post-traumatic stress disorder which originated from bullying in school. The Tribunal found that the conduct of Mr. Hayduk had caused Mr. Landry “serious, lasting harm.”

The Tribunal concluded that Mr. Hayduk’s statements and questions during the interview expressed preferences indicating discrimination on the basis of religious beliefs, sexual orientation, marital status and race. The Tribunal was satisfied that the topics discussed were not appropriate for a job interview. 

The Tribunal awarded Mr. Landry general damages for loss of dignity of $20,000. The Tribunal further awarded Mr. Landry lost wages that he would have earned if he had been given the job at Vegreville Autobody for a period of 60 weeks: $48,000.00 reduced by a 25 per cent contingency discount for a net sum of $36,000.00. The complainant has appealed the decision to the Court of Appeal.

The Commission also recently released the following tribunal decisions:

  • Danielle Brothers v. Shippers Supply Inc. (January 4, 2018; Joanne Archibald, Tribunal Chair)
  • Miladinka Kovacevic v. City of Red Deer (January 2, 2018; Melissa Luhtanen, Tribunal Chair)
  • Tod Custer v. Bow Valley Ford Ltd. (December 7, 2017; Sharon Lindgren, Tribunal Chair)

These tribunal decisions can be accessed free of charge through the Canadian Legal Information Institute (CanLII) website.
 
COMMISSION NEWS

1. Amendments to Alberta Human Rights Act come into force on January 1, 2018
The Government of Alberta has amended the Alberta Human Rights Act, effective January 1, 2018. Age discrimination is now prohibited in the protected areas of goods, services, accommodation or facilities, and in the area of tenancy. There are exceptions that allow specific types of age restrictions in the area of goods, services, accommodation or facilities. In the area of tenancy, age restrictions will not be permitted in rental buildings as of January 1, 2018. In addition, the Act is amended to protect ameliorative policies, programs and activities that are designed to improve the conditions of disadvantaged persons and that achieve or are reasonably likely to achieve that objective.

For details, read the January 2018 Notice of Changes to Alberta’s Human Rights Legislation.

Important information about making a human rights complaint relating to age under sections 4 and 5:

  • The Commission cannot accept complaints on the ground of age under sections 4 and 5 until the amendments come into force on January 1, 2018.
  • Only incidents that occur on or after January 1, 2018 will be covered by the new protection.

2. Commission welcomes new Senior Legal Counsel to the Office of the Chief of the Commission and Tribunals
The Alberta Human Rights Commission is pleased to announce that Melissa Luhtanen has been appointed to the position of Senior Legal Counsel to the Office of the Chief of the Commission and Tribunals, effective January 8, 2018.

Ms. Luhtanen was called to the Alberta Bar in 2000 and brings to this position a solid background and broad experience in human rights, coupled with substantial policy and speaking expertise. In 2011, she was appointed to the Commission as a part-time Tribunal Chair. While in private practice, she advised individuals, corporations and not-for-profit organizations on human rights law. Ms. Luhtanen has consulted on areas of human rights policy, assisting many organizations from private companies to government. She has taught human rights principles to various sectors including business, judiciary, law enforcement, government and education. Ms. Luhtanen has also presented and written numerous articles on the issues of discrimination, harassment, and the legal duty to accommodate.

3. Upcoming forums and public workshops:
Human Rights in Employment Forum Series: Understanding Gender Identity and Gender Expression in the Workplace
The Commission is offering a forum on Understanding Gender Identity and Gender Expression in the Workplace.
Edmonton: February 7, 2018
Calgary: February 28, 2018
You can read more about the upcoming forums.

Human Rights in the Workplace public workshop
The Commission is offering a public workshop in Calgary intended for anyone wanting basic human rights information
Date: March 13, 2018
Time: 9:00 a.m. to 4:00 p.m.
Location: Acclaim Hotel Calgary Airport, 123 Freeport Boulevard NE, Calgary
Fee: The workshop fee is $125.00 plus GST, totalling $131.25. Lunch is included.
You can read more.

4. E-learning Centre: What’s new?
Are you an Alberta business, organization or employee who wants to learn more about human rights concepts such as the duty to accommodate, undue hardship and bona fide occupational requirement? If so, the Commission has a three-part webcast series that provides information on how to accommodate employees in the workplace. These webcasts are free for on-demand viewing with registration:

  • Overview: offers information for employers on how to accommodate employees and potential employees and describes the rights and responsibilities of employers and employees in the process.
  • Undue Hardship: explains undue hardship and what constitutes undue hardship when providing an accommodation for an employee.
  • Bona Fide Occupational Requirement: describes the concept of a bona fide occupational requirement and outlines the three-part test set out by the Supreme Court of Canada.

5. Commission bids farewell to Cassie Palamar
On January 2, 2018, Cassie Palamar retired from her position as Director of Education and Engagement, Alberta Human Rights Commission. Ms. Palamar has worked for the Alberta Government for 35 years, including 22 years at the Commission.

Commission staff express their gratitude for the leadership provided by Ms. Palamar during her tenure at the Commission. Under her watch, Albertans have benefited as the Commission has developed programs and resources, and engagement and partnership initiatives, to address current and emerging needs and issues. The impact of these initiatives has extended beyond Alberta. For example, the Commission's educational initiatives and resources have served as models for other human rights commissions, and our work on building welcoming and inclusive communities in Alberta has been recognized nationally. We wish Ms. Palamar well in retirement.

6. New Commission report released

2017 marked the 45th anniversary of the introduction of the Individual’s Rights Protection Act and the Alberta Bill of Rights, which formed the basis of the Alberta Human Rights Act, and the establishment of the Alberta Human Rights Commission.

In recognition of this important anniversary, the Alberta Human Rights Commission hosted conversations in five communities across Alberta. The summary report, Your Voice: Advancing Human Rights in Alberta, was disseminated to Alberta stakeholders who attended the conversations. 

7. Passing of Dr. Felix (Fil) Blache-Fraser, former Chief Commissioner, Alberta Human Rights Commission
The Commission notes with sadness the passing of Dr. Felix (Fil) Blache-Fraser, an advocate of human rights and a former Chief Commissioner of the Alberta Human Rights Commission. Dr. Fraser served as Chief Commissioner from 1989 to 1992. You can read Dr. Fraser’s obituary

8. Scholarships awarded
Alysia Wright is the recipient of the 2017 Alberta Award for the Study of Canadian Human Rights and Multiculturalism for her research: an ethnographic study on how workplace culture in the Alberta oilfield perpetuates discrimination and negatively affects the health and wellbeing of workers. Jesse Orjasaeter is the recipient of the 2017 Pardeep Singh Gundara Memorial Scholarship for his research that explores best approaches to "allyship" between academic researchers and the autism spectrum disorder (ASD) community. You can read more about the recipients and the scholarships.

9. Recently Completed Grant Project

Funded in part by a grant from the Human Rights Education and Multiculturalism Fund, the CommunityWise Resource Centre conducted a consultative review to address their organization’s structural inequities and racism. Working and advisory groups explored Anti-Racist Organizational Change with members of their community as well as with staff and board. They have shared their work with more than 26 non-profit organizations in the Calgary region. The following resources were developed:

A two-day workshop addressing organizational and systemic racism is being presented on February 2 and 3, 2018. For more information, contact equity@communitywise.

10. The Commission in the community

  • Human Rights Day 2017: On December 10, the Commission celebrated International Human Rights Day, which marks the United Nations' signing of the Universal Declaration of Human Rights in 1948.

    In recognition of this important date, the Commission participated in a number of events in communities across Alberta, including providing remarks at the Alberta Civil Liberties Research Centre’s event at the University of Calgary, the University of Lethbridge’s event, the Municipality of Wood Buffalo’s annual event, the Calgary Police Service’s Round Dance and the Alberta Network of Immigrant Women’s event in Calgary. Many other celebrations were held across Alberta to recognize this significant date.


    Mr. William D. McFetridge, Q.C., Acting Chief of the Commission and Tribunals, providing remarks regarding Human Rights Day at the Calgary Police Service's Round Dance.

  • Weekly smudge ceremony at John J. Bowlen Building: The Commission is hosting a weekly smudge ceremony for staff and other tenants of the John J. Bowlen Building in Calgary. Smudging is a form of spiritual cleansing, physical and spiritual protection, and a form of prayer. On December 11, 2017 the Commission was joined by Elder Doreen Spence and members of the Calgary Indigenous Human Rights Circle for the inaugural smudge. 

    This initiative furthers the Commission’s work with the Indigenous community on better understanding Indigenous culture and traditions, strengthening partnerships and relationships, and moving forward on the Truth and Reconciliation Commission of Canada’s 94 Calls to Action.

    Elder Doreen Spence and Cam Stewart, Policy and Program Consultant, Alberta Human Rights Commission, at the inaugural smudge ceremony on December 11, 2017.

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