June 21, 2022

Alberta Human Rights Information Service (AHRIS) is a free online newsletter that keeps subscribers up-to-date on Commission news and events. AHRIS also provides timely information about human rights and diversity from other organizations.

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Alberta Human Rights Information Service - June 21, 2022

In this issue:

National Indigenous Peoples Day is June 21

Human rights case law: Tribunal decisions
1. Recent Tribunal decisions
2. Summary of a recent Tribunal decision

Commission news
1. Director of the Commission retirement
2. Tribunal proceedings
3. Upcoming Human Rights in the Workplace online public workshops

National Indigenous Peoples Day is June 21

Government of Canada​

June 21 marks National Indigenous Peoples Day. Canada first recognized National Indigenous History Month in 2009 by passing a unanimous motion in the House of Commons. Occurring every June, the day celebrates First Nations, Métis, and Inuit cultures and aims to recognize the rich contributions of Indigenous people and communities. It also serves to educate the general public about Indigenous tradition and customs, and is a reminder to reflect on the ongoing issues faced by Indigenous communities in all of Canada.

In the spirit of truth and reconciliation, the Alberta Human Rights Commission has made sincere efforts to foster meaningful relationships with Indigenous communities. Staff members actively participate in ongoing education about the historic and current discrimination Indigenous people have endured, and the Commission, as a whole, is embarking on changes to make its services and systems more culturally appropriate and accessible.

Last June, the Commission launched its Indigenous Human Rights Strategy with input from the Indigenous community in Alberta. This strategy guides the Commission's practices and initiatives with the goal of reducing barriers that Indigenous individuals and communities face. It also aims to enhance the Commission's interactions with Indigenous people and communities. Established in October 2021, an Indigenous Advisory Circle assists the Commission with implementing the strategy. This work demonstrates the Commission's commitment to prioritizing the ongoing issues faced by the Indigenous population, while critically examining its own systems and continuing to build trust with all Indigenous communities throughout Alberta.

1.  Message from the Chief of the Commission and Tribunals

To recognize this important day, read a message​ from Kathryn Oviatt, Chief of the Commission and Tribunals, Alberta Human Rights Commission.

2.  Call for expressions of interest for Indigenous Advisory Circle membership

The Commission is looking to complete the Indigenous Advisory Circle with an Indigenous person from the 2SLGBTQ+ community. The Circle is made up of leaders, Elders and knowledge keepers, and experts from across the province who help the Commission implement its Indigenous Human Rights Strategy in a thoughtful and respectful way. Circle members provide advice on innovative and effective strategies to reduce barriers, strengthen relationships, increase participation, and address systemic issues. The Commission is currently accepting applications​ to fill this vacancy.

Human rights case law: Tribunal decisions

1. Recent Tribunal decisions
Read all Tribunal decisions free of charge on the Canadian Legal Information Institute (CanLII) website.

2. Summary of a recent Tribunal decision

Award of $50,000 in general damages for sexual harassment
Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62 (Alberta Human Rights Tribunal, May 27, 2022)

The complainant was a corporate recruiter who entered into an Independent Contractor Agreement with the respondent, a company that provided engineering services to its clientele.

In this case, the complainant originally provided services to the respondent through a third-party agency. The respondent liked her work and decided to retain her services directly. Unlike Lockerbie & Hole Industrial Inc. v Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3, the respondent was not hiring a corporation to get the job done by whatever means necessary; it was her personal service that was retained. For the purposes of the Alberta Human Rights Act, it was held that the respondent was the complainant's employer.

The complainant worked full-time for the respondent. While in theory the complainant's corporation could have taken on other work, the corporation was a one-person company and the workload for the respondent was heavy –​ so heavy that she engaged a sub-contractor. The complainant was wholly dependent upon the respondent for her income. For much of the time, there were not enough hours in a day for her to earn an income elsewhere. Moreover, when the complainant did ask about taking on other work, Emerson's Director of Operations told her that any other work would be subject to his approval.

The Tribunal found that the complainant was subject to sexual harassment and that the sexual harassment was a factor in the timing and the manner of her termination, but that the complainant's employment would have occurred regardless of the sexual harassment. Relying on Janzen v Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 SCR 1252, the Tribunal stated that if a person is subjected to sexual harassment, this would not only constitute an adverse impact, but discrimination would also be made out.

The Tribunal accepted the complainant's evidence that her manager made comments and jokes of a sexual nature, that he sent her a sexually explicit video, and that he sent her email jokes of a sexual nature. The complainant's manager referred to her as a credenza and this related to Emerson's control over the complainant's tenure. Her manager commented on her appearance, made suggestive comments about other women, and made intrusive enquiries about her personal life. Her manager told her that he wanted to have an affair.

The complainant alleged that the respondent retaliated against her. The Tribunal held that retaliation, within the meaning of section 10 of the Act, did not occur.

The Tribunal found that the discriminatory conduct had a profound negative effect on the complainant. It significantly affected her psychological health and prevented her from engaging in meaningful employment. Moreover, when the complainant told management of her concerns, the employer's response was dismissive. The investigation was seriously flawed. The Tribunal awarded $50,000 in general damages, plus lost wages.

The Tribunal declined to award a claim for legal fees, since this would be akin to awarding costs. In the absence of improper conduct in the litigation of the complaint, costs were not warranted.

Commission news

1.  Director of the Commission retirement

The Commission honours and thanks Nancy Henderson, the Director of the Commission, who will retire effective June 30, 2022. Ms. Henderson served as the Director since February 2019. During her tenure, she led the Complaints Management area​ in the monumental effort of addressing the Commission's longstanding complaint backlog and the rollout of a streamlined complaint process, which began on January 1, 2022. Ms. Henderson has been an invaluable leader in the advancement of human rights in Alberta and will be dearly missed at the Commission.

2.  Tribunal proceedings

Experience during the pandemic demonstrated that electronic proceedings are accessible and useful in decreasing the wait time for a proceeding to be scheduled, while protecting fairness in hearing proceedings. The Tribunal has thus decided to continue holding Tribunal Dispute Resolutions and hearings through videoconference (electronic proceedings). The Tribunal has developed a practice direction on requests for changes to hearing format to be used in exceptional cases where a party must apply for an in-person hearing.

In order to improve the efficiency of electronic proceedings, the Tribunal has implemented a revised practice direction on information to be filed before a hearing that includes a required format for parties' hearing submissions. The Tribunal has also implemented a practice direction on witness testimony and examination at electronic hearings to guide parties on scheduling their witnesses and on ensuring their witnesses have all the required documentation before their time of testimony at the hearing.

3.  Upcoming Human Rights in the Workplace online public workshops

The Commission offers online Human Rights in the Workplace public workshops that provide participants with basic human rights information, including information about Alberta's human rights legislation, concepts like the duty to accommodate, and strategies for preventing harassment in the workplace.

Registration is currently open for the following workshop dates:

November 15 - 16, 2022
January 10 - 11, 2022
January 17 - 18, 2022

Learn more about the Commission's public workshops, the upcoming schedule, and registration details.