Alberta Human Rights Information Service June 20, 2018

In this issue:
National Indigenous Peoples Day
Human rights case law: Court and tribunal decisions
Commission news
Other human rights and diversity news

Publications and resources

June 21st marks National Indigenous Peoples Day
National Indigenous Peoples Day is a day for all people to connect with one another and share in Indigenous culture, ceremony, and tradition. It is a time to come together and celebrate, but it is also a time to increase our understanding of Indigenous history and reflect on the issues facing Alberta’s Indigenous people today.

Conversations with Albertans
Last year, the Alberta Human Rights Commission engaged in conversations throughout the province to learn more about the human rights issues facing Alberta communities.

Community members working in the area of human rights came together to discuss:
  • The human rights issues facing their communities
  • The actions they are taking to address them
  • The challenges and barriers that exist
  • The supports needed to help overcome these challenges

First Nations and Métis communities and organizations were integral to these conversations, bringing wisdom and knowledge about their history, culture, traditions, and experiences. Indigenous Elders and Knowledge Keepers provided opening remarks and guidance throughout the conversations.

Human rights issues facing Alberta’s Indigenous community
Important human rights issues impacting Indigenous people emerged from the dialogues. Participants expressed that:

  • Indigenous people experience high rates of racism and discrimination, especially when looking for housing and employment, or when accessing the education, justice, and health care systems.
  • Profiling, stereotyping, and racial bias are significant factors in the discrimination that Indigenous Albertans encounter. This limits their ability to get a job, receive high quality public services, and find a place to call home.
  • Discrimination is both overt and subtle or covert.
  • Media and social media heighten and reinforce stereotypes and support continued discrimination.

You can read more about what we heard at the conversations in the report, Your Voice: Advancing Human Rights in Alberta. You can also read a Message from William D. McFetridge, Q.C., Acting Chief of the Commission and Tribunals, Alberta Human Rights Commission, regarding National Indigenous Peoples Day 2018.

What can you do?
On June 21st Alberta’s First Nations and Métis communities will share their cultures and teachings at community events throughout the province. Participating in local events provides an opportunity for non-Indigenous people to experience and learn more about Indigenous culture and to connect with Indigenous people in their communities.

Visit the following websites to find events near you:

HUMAN RIGHTS CASE LAW: COURT AND TRIBUNAL DECISIONS

1. Important court decision related to human rights:
Webber Academy Foundation v Alberta (Human Rights Commission), 2018 ABCA 207 (CanLII)
Court of Appeal returns human rights case concerning religious belief back to the Tribunal
This case concerns two 14 year-old students who were enrolled at Webber Academy, a private school in Calgary. The two students followed the traditional Muslim practice of praying at five appointed times during the day. At least once a day, and twice daily in the winter months, the students would be required by their religion to pray during school hours. The prayers involved bowing and kneeling in a ritual that takes about five to six minutes. The students and their parents enrolled in the school with the understanding that their need to pray would not be a problem.

For the first two and a half weeks, the students asked a school administration assistant for a key to an empty conference room for their prayers. However, when one of the boys carried out his prayers at the back of the school’s library, the school principal advised the parents of the students that there can be no overt prayer anywhere in the school or on campus.

Discussions between the parents and the school concerning school policy and accommodation did not resolve the issue and the students were not permitted to enroll the following year. The parents filed human rights complaints on behalf of their children under section 4 of the Alberta Human Rights Act (the Act). Section 4 of the Act says that no service provider can deny a service customarily available to the public based on any one of a number of protected grounds, including religious belief.

Webber Academy argued that "the provision of prayer space" is beyond the scope of section 4 of the Act. It submitted "prayer space" is not a service Webber Academy customarily makes available to the public it serves. It submitted being non-denominational was an integral part of Webber Academy's identity and that allowing prayer in an overt form on campus is contrary to its principled approach of being non-denominational. The respondent offered the accommodation of allowing the students to leave the campus to pray and that this was reasonable and sufficient.
 
The three-person Alberta Human Rights Tribunal found that Webber Academy had discriminated against the students contrary to the Act. It held that the students’ prayers did not diminish the school’s “non-denominational” identity and its declared value of making young people of many faiths “feel equally at home.” The Tribunal directed Webber Academy to pay compensation for injury to the students’ sense of dignity, $12,000.00 to one student and $14,000.00 to the other student. 

Webber Academy appealed the decision to the Court of Queen’s Bench. The Court of Queen’s Bench upheld the Tribunal’s decision finding that “Webber Academy’s discretion to set policies regarding student conduct does not give a private school license to exercise their discretion in denying the services or use of facilities in a discriminatory fashion.” The Court observed that Webber Academy allowed exceptions to its standard school policies for religious reasons, such as permitting head coverings and facial hair, but that “for some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school and the children from time to time”: Webber Academy Foundation v Alberta (Human Rights Commission), 2016 ABQB 442 (CanLII), para 123. The Court upheld the Tribunal’s decision.

Webber Academy appealed the decision to the Alberta Court of Appeal. Counsel for the school introduced an argument that was not heard in the prior proceedings: specifically, that the federal Charter of Rights and Freedoms (the Charter) should have been argued because section 4 of the Act may itself violate the Charter. The Court of Appeal recognized that as a general rule new issues may not be raised on appeal without leave of the Court, however, because of the importance of the matter, as wells its findings that certain findings of the Tribunal were not adequately reasonable, transparent and intelligible, it directed that the case be returned to an entirely new Tribunal to hear evidence and argument on the facts of the case. With respect to whether section 4 of the Act is in violation of the Charter, the Court directed that any Charter matters shall be referred to the Court of Queen’s Bench by way of a stated case under section 31 of the Act. The determination of the Court of Queen’s Bench on the Charter issue would then be sent back to the Tribunal to be incorporated into the Tribunal’s decision on the merits of this human rights case.  

2. 
 Recent tribunal decision:
Summary of recent important tribunal decision
Wendy Bigcharles v. Statoil Canada Ltd., 2018, 2018 AHRC 5
Tribunal finds no merit in complaint of discrimination based on gender, race/ colour and ancestry/place of origin
Wendy Bigcharles (the complainant) was an employee of Statoil Canada Ltd. (the respondent) in Canada and moved to Norway to work in an expatriate role with Statoil ASA (Statoil Norway). The complainant had positive experiences in this role, however, in the fall of 2012 a new manager took over her area. The complainant testified that the manager was angry toward her, critical of her work and excluded her from work-related discussions. The complainant reported her manager’s behavior to human resources, and linked the behavior to her being Aboriginal.

The complainant suffered psychologically from issues at work and her housing in Norway. Her doctor recommended she take a period of medical leave. Her expatriate assignment in Norway was discontinued in February 2013 and she returned to Canada. On her return, Statoil Canada found her a new position. The working relationship with her new manager was reportedly good for the first few months, however she found it frustrating that her Canadian employer would not discuss her experiences in Norway. The complainant alleged that later both her line manager and the head of human resources commented that “some people do not make good expatriates.” She interpreted this as disparagement directed at her as an Aboriginal person. She also alleged that her manager made disparaging remarks about Aboriginal people at a staff meeting. The manager denied making any disparaging statements about Aboriginal people at a staff meeting or otherwise and stated that for a person in his position, in this company, to do so would be “career suicide.”

On June 16, 2014, the complainant filed a human rights complaint alleging she was discriminated against and harassed in her employment with Statoil Canada based on her gender, race/colour and ancestry/place of origin, during her work in Norway in 2012 - 2013 and after her return to Calgary, Alberta.

The complainant included a number of additional allegations against the respondent, some of which dated back to her time in Norway. The Canadian allegations included retaliation by the respondent, and that she was forced to take an involuntary leave of absence and was discriminated against by her manager when he made her wait for meetings and cancelled meetings.

The Tribunal considered its territorial jurisdiction and found that the Alberta Human Rights Commission did not have jurisdiction over the complaints against Statoil ASA (Norway) which arose while she was employed in Norway. The Tribunal also noted the one-year limitation for filing a complaint and found that the Tribunal could not consider events that occurred before June 16, 2013, except for the purpose of providing context to the complaint.

The Tribunal found that the racist comments she attributed to her Canadian manager were not credible. She had submitted lengthy written complaints in Norway and later in Canada which did not include the specific allegations which form the basis of her complaint. Some of her allegations were not mentioned until she filed her human rights complaint years after the incidents are alleged to have taken place. Other allegations conflicted with the testimony of witnesses considered by the Tribunal to be credible.

The conflict between the complainant’s evidence and the evidence of the other witnesses resulted in a finding that there was insufficient evidence to support a finding of retaliation or a finding of discrimination on the basis of any protected ground. The complainant did not establish a prima facie case of discrimination. The Tribunal held that it had no jurisdiction over acts of discrimination alleged to have occurred before June 16, 2013 or acts of discrimination alleged to have occurred while she was employed by Statoil ASA in Norway. 

COMMISSION NEWS

1. Age as a protected ground: The Commission has updated the description of age as a protected ground in its information sheet Protected Areas and Grounds under the Alberta Human Rights Act to reflect the January 2018 amendments to the Alberta Human Rights Act. In addition, the updated Commission web page Age as a Protected Ground provides a more detailed discussion of age as a protected ground.

2. Coalitions Creating Equity Initiative
In response to what was heard at the community conversations held in recognition of the 45th anniversary of the Individual’s Rights Protection Act and the Alberta Bill of Rights, the Commission partnered with community organizations on the Coalitions Creating Equity (CCE) initiative. This initiative is both a local and province-wide approach to addressing equity, racism and human rights. In partnership with local organizations, the Commission funded each of the five communities that participated in the conversations for a two-year pilot project that will help communities advance human rights and address their local human rights issues and priorities. Regional coordinators will establish networks that will engage the community, support leadership development, and build their communities’ capacity to prevent racism and discrimination and decrease inequality in their regions.

3. Commission staff received Team Merit Awards:
  • Working Group – Engagement Committee: Anne Clennett, Birju Dattani, Jacquelyn Humphries, Anita Murray, Carolyn Ormsbee and Tania Sarkar, all from various areas of the Commission, were awarded a Team Merit Award by the Government of Alberta for the Working Group – Engagement Committee. The team was recognized for their commitment to creating a positive and inclusive work environment.

  • 45th Anniversary Conversations: Jasvir Chatha-Bains, Anne Clennett, Susan Coombes, Carolyn Ormsbee, Sushila Samy and Cam Stewart, all from the Education and Engagement area of the Commission, were awarded a Team Merit Award by the Government of Alberta for their work on the 45th anniversary conversations. The team was recognized for their commitment to excellence as they coordinated a series of meetings with the Chief of the Commission and Tribunals and organizations across Alberta to learn about local human rights issues and priorities. The meetings were held in the context of the 45th anniversary of the Individual’s Rights Protection Act and the Alberta Bill of Rights, which form the basis of the Alberta Human Rights Act. You can read the report summarizing the conversations.

 
Cam Stewart, Acting Manager, Education and Engagement (E & E); Susan Coombes, Acting Director, E & E; Anne Clennett, Policy & Program Consultant, E & E; William D. McFetridge, Q.C., Acting Chief of the Commission and Tribunals; Carolyn Ormsbee, Grant and Program Administrator, E & E; and Jacquelyn Humphries, Senior Human Rights Officer, at the Team Merit Awards Ceremony held on June 5, 2018 in Calgary.


Tania Sarkar, Legal Counsel for the Director; William D. McFetridge, Q.C., Acting Chief of the Commission and Tribunals; Sushila Samy, Diversity Specialist, E & E; and Birju Dattani, Assistant Northern Director, at the Team Merit Awards Ceremony held on June 11, 2018 in Edmonton.

OTHER HUMAN RIGHTS AND DIVERSITY NEWS


1. Gender-inclusive "X" option for ID documents: Albertans are now able to choose Female, Male or “X” on their driver’s licences, ID cards and vital statistics records, such as birth certificates and death certificates. You can read the Government of Alberta news release.

PUBLICATIONS AND RESOURCES

1. Alberta’s new Occupational Health and Safety Act: Alberta’s new Occupational Health and Safety Act came into effect June 1, 2018. Under the new rules, harassment and violence are defined as workplace hazards. Employers must develop workplace harassment and violence prevention plans and address incidents when they do occur. Employers can improve their understanding of the new rules by referring to resources offered by the Government of Alberta:

2. Police-reported hate crime in Canada 2016 statistics: Statistics Canada released Police-reported hate crime in Canada 2016. Some of the statistics include:

  • criminal incidents motivated by hate increased 3%;
  • hate crimes targeting sexual orientation rose 25%; and
  • crimes motivated by hatred of a race or ethnicity increased 4%.

You can read the highlights and the report.

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