Canadian Human Rights

Front 1

Where does Canadian Human
Rights Law come from?

Back 1

1. Our Human Rights Failures
i. Our History: Aboriginal Peoples
ii. Our History: Women
iii. Our History: Japanese Canadians

2. Failure of Earlier Human
Rights Laws

3. Our International Human
Rights Commitments

Front 2

What are the five failures of earlier human rights laws?

Back 2

1. Common Law
2. British North America Act (1867) – Federalism
3. Early Anti‐Discrimination Statutes
4. Criminal Law
5. 1960 Bill of Rights

Front 3

What years were the Ontario Human Rights Commission and the Ontario Human Rights Code enacted?

Back 3

1961– Ontario Human Rights Commission

1962 – Ontario Human Rights Code

Front 4

What five main areas of social activity does the Ontario Human Rights Code cover?

Back 4

-Accommodation (housing)
-Services (restaurants, stores, etc.)
-Contracts
-Vocational Associations
-Employment

Front 5

List some grounds in employment, s.5(1) that prohibit discrimination (14 grounds).

Back 5

Race * Sex * Ancestry * Sexual Orientation * Place of origin * Record of Offences * Colour * Marital Status * Ethnic Origin * Family Status * Citizenship * Disability * Creed * Age

Front 6

Discuss the legal concepts of direct discrimination.

Back 6

Intentional discrimination
Ex. “No Muslims or Gays served in this restaurant”

Front 7

Discuss the legal concepts of indirect discrimination.

Back 7

Also known as Adverse Impact or Nonintentional Discrimination
-Neutral rule or practice that has discriminatory impact/result
-“All employees must be available to work Friday evenings”
-Most common form of HR complaint

Front 8

Discuss the legal concepts of systemic discrimination.

Back 8

Form of indirect discrimination
-Entrenched pattern of discrimination against
disadvantaged group

i.e. low wages for women; Aboriginal peoples occupy only low‐end jobs; persons with disabilities not getting promotions; etc.

Front 9

Explain the case of O’Malley v. Simpson‐Sears (SCC, 1985).

Back 9

O’Malley worked full‐time as a retail clerk for Simpson‐Sears since 1971.
-7th Day Adventist in 1978 – Sabbath was Friday sundown to Saturday sundown
-Worked afternoon, evening shift. Wanted not to work on Friday evenings and Saturdays
Rule: “All employees must be available for work Friday evenings”, therefore offered only part‐time work
-O’Malley: argued discrimination on basis of “creed”

Front 10

Discuss Andrews v. Law Society of British Columbia (SCC, 1989)

Back 10

Mark Andrews was a British citizen, permanently living in Canada. Had English law degrees and had finished his legal articles in B.C.
-Met all requirements to become a lawyer except was not a Canadian citizen, as required by Barrister and Solicitors Act of B.C.
-Law Society of B.C. refused his application
-Mr. Andrews initiated a s.15 challenge under the Charter, arguing:
i. “citizenship” should be read into s.15;
ii. B.C. laws discriminated against him;
iii. No justification for doing so.

Front 11

What three important human rights principles does the Supreme Court of Canada establish?

Back 11

1. Importance of equality and abhorrence of discrimination in a democratic society
2. Broad definition of discrimination
3. Additional grounds of prohibited discriminating conduct can be added to s. 15.
-Citizenship
-Sexual Orientation
-Aboriginals living off reserve

Front 12

What has the greatest impact on Accommodation at Work?

Back 12

Disability

Front 13

Employers & unions must make _______ __________ ______, short of _____ _________, to accommodate an employee who falls under a protected ground of __________

Back 13

-every reasonable effort
-undue hardship
-discrimination

Front 14

What are the seven factors of undue hardship?

Back 14

1. Safety
2. Impact on collective agreement
3. Legitimate operational requirements of workplace
4. Size
5. Interchangeability of workforce
6. Employee morale
7. Cost

Front 15

What is the rule of seniority?

Back 15

Seniority trumps, unless no other way to reach accommodation

Front 16

The acts require only a _____ standard of proof, as opposed to the criminal standard. It was only necessary to to that disrimination had occurred on a "________ of ________"

Back 16

-civil
-balance of probabilities

Front 17

What is the Meiorin test used for and what are the three steps?

Back 17

Examining the validity of test;
-purpose is rationally connected to performance of the job
-employer acted honestly and in good faith that is necessary
-must not impose undue hardship upon the employer

Front 18

What is common law?

Back 18

Judge-made law, ie., private law, torts, contracts

Front 19

What was significant in Christie v. York?

Back 19

Christie was refused service because he was black

Front 20

What is the British North America Act and what does and does it not do?

Back 20

Constitution Act
divides tiers of power, but did not deal with Human Rights

Front 21

What did the 1960's Bill of Rights set out to achieve and what were its short-comings?

Back 21

-everyone should be treated equally
-gave declaration
-was fundamentally weak
-only applied to federal realm
-no build in enforcement mechanism
-no human rights commissions/tribunals

Front 22

What year was sexual orientation ruled to be part of the charter? And because of what case?

Back 22

1997
Vinind v. Quebec

Front 23

What does the Ontario Human Rights Commission do?

Back 23

-administers the Code
-complaint procedures
-educates the public
-advises government on development of code

Front 24

Discuss Bhinder v. CN Rail.

Back 24

Must wear a hard hat on site, but Bhinder wore a turban and could not wear a hard hat. Supreme Court said CN Rail couldn't accommodate Bhinder. Bhinder accepts the risks, and would only be unsafe for him. Bhinder would be entitled to worker's compensation if anything happened.

Front 25

How many times does an employer have to accommodate someone?

Back 25

3 times

Front 26

What is the Canadian Human Rights Tribunal responsible for?

Back 26

hearing and deciding cases that cannot be settle through conciliation

Front 27

Under the Employee Equity Act, what does the Canadian Human Rights Commission have the power to perform?

Back 27

audits of public and private employers to ensure they are conforming to federal law

Front 28

What is the CHRC also responsible for developing and conducting?

Back 28

information and prevention programs to raise awareness about human rights amongst the general public

Front 29

If an allegation falls within its jurisdiction, the CHRC will often pursue what?

Back 29

early resolution and preventative mediation, which is a voluntary process where CHRC officers will attempt to mediate a solution to the matter that is mutually acceptable to all parties

Front 30

If a dispute cannot be resolved through early resolution and preventative mediation, the individual or group making the allegation can submit what to the CHRC?

Back 30

a formal complaint to determine whether the issue will be pursued further

Front 31

If mediation is not appropriate, or is declined by the parties, the file will undergo what?

Back 31

either a preliminary assessment or will be referred directly to a full investigation

Front 32

How long does the average hearing last?

Back 32

5-7 days

Front 33

After hearing the evidence and interpreting the law, the panel decides whether a discriminatory practice has occurred. If they find it has occurred, what happens?

Back 33

The panel will outline what sort of remedy should take place

Front 34

How are decisions usually delivered to the parties and the public?

Back 34

in writing

Front 35

What are the exceptions/defences Ontario Human Rights create?

Back 35

Accommodation – unique hardship (s.17(2))
Special interest organizations (s.18)
Solemnization of marriage (s.18.1)
Insurance contracts (s.22)
Special employment (s.24)

Front 36

What are the broad remedial powers of the Human Rights Tribunal?

Back 36

-Reinstatement
-Damages for lost income
-Damages for mental anguish
-Apology
-Creation of employment equity program
-Human rights awareness sessions

Front 37

Human rights legislation is not ordinary law. What is it?

Back 37

quasiconstitutional, therefore it trumps other legislation, except for Canadian constitution

Front 38

What 2 things are not necessary to find violation of human rights legislation?

Back 38

motive and intention

Front 39

Human rights legislation applies to public and private sectors, while Charter only applies to what?

Back 39

government laws or acts

Front 40

Charter and human rights rulings are influenced by what?

Back 40

each other

Front 41

What was the Simpson‐Sears’ defence and was there a violation of the code?

Back 41

No intention to discriminate + rule was for sound business reason, therefore no violation of Code

Front 42

Did O’Malley win or lose?

Back 42

lost at Human Rights Board of Inquiry, and lower courts

Front 43

Supreme Court of Canada allowed the appeal, and established what 2 important new human right principles?

Back 43

1. Duty to Accommodate is now part of Canadian human rights law.
2. Indirect or Non‐Intentional Discrimination is now part of Canadian human rights law

Front 44

Since what year has duty to accommodate been part of Canadian law?

Back 44

1985

Front 45

How are humans rights and exceptions interpreted?

Back 45

HR: broadly
Exceptions: narrowly

Front 46

Who do proof and onus initially rest with?

Back 46

the employee and union

Front 47

Who then does proof and onus shift to?

Back 47

the employer

Front 48

In regards to family status, discuss Campbell River Transition Society (2004).

Back 48

The woman works 24 hours a week, 4 6-hour shifts a week. Has an autistic child. The employer changed her shifts to 2 12-hour shifts. Employer didn't accommodate her, and fired her. the employer was instructed to give her her job back.