The Court dismissed an application for judicial review of the Human Rights Commission’s decision to dismiss the Applicant’s allegations of discrimination, but allowed her application with respect to an allegation of retaliation

25. October 2005 0
Administrative law – Human rights complaints – Discrimination – Disability – Employment law – Conditions of employment – Decisions of administrative tribunals – Human Rights Commission – Investigations – Evidence – Jurisdiction – Judicial review – Compliance with legislation – Limitations of actions – Procedural requirements and fairness – Standard of review – Correctness Dubois v. Canada (Attorney ...

The court dismissed an application for judicial review and held that the Ontario Human Rights Commission had not breached the requirement of procedural fairness in not placing certain documents before the Commission and that the Commission’s exercise of discretion regarding a limitation period did not exceed its jurisdiction and was not in error

22. March 2005 0
Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Commission – Limitations – Judicial review – Jurisdiction – Procedural requirements and fairness – Disclosure – Standard of review – Patent unreasonableness Hassaram v. Ontario (Human Rights Commission), [2005] O.J. No. 29, Ontario Superior Court of Justice, January 7, 2005, ...

The Court dismissed the Province’s application for an order to stay part of the British Columbia Human Rights Tribunal’s order requiring payment to the Respondents, pending a decision of the Court on judicial review

25. January 2005 0
Administrative law – Human rights complaints – Discrimination – Disability – Family members as care givers – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review application – Stay of proceedings – Test British Columbia v. Hutchinson, [2004] B.C.J. No. 2434, British Columbia Supreme Court, November 24, 2004, Ralph J. The British Columbia Human Rights ...

The appeal by an employer (“Vantage”) from a decision of the Human Rights Panel of the Alberta Human Rights and Citizenship Commission was dismissed where the court found that the evidence considered by the Panel clearly established that Vantage had not given consideration to accommodation of the physical limitations of the complainant (“Marcil”). The court also upheld the Panel’s decision to award $28,000 as compensation for lost employment income.

25. May 2004 0
Administrative law – Human rights complaints – Discrimination – Disability – Duty to accommodate – Employment law – Termination of employment – Damages – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Standard of review – Correctness Vantage Contracting Inc. v. Marcil, [2004] A.J. No. 368, Alberta Court of Queen’s Bench, March 29, 2004, ...

The Ontario Nurses’ Association (the “Association”), representing a nurse who was terminated for innocent absenteeism due to disability (“Tilley”), successfully applied for judicial review of a decision of a Board of Arbitration which had held that the hospital’s failure to pay severance to Tilley did not violate s.15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”)

23. March 2004 0
Administrative law – Employment law – Termination of employment – Severance pay – Human rights complaints – Disability – Charter of Rights – Discrimination – Decisions of administrative tribunals – Arbitration Board – Judicial review – Standard of review – Correctness Ontario Nurses’ Assn. v. Mount Sinai Hospital, [2004] O.J. No. 162, Ontario Superior Court of Justice – Divisional ...

The court held that a policy requiring employees to undergo drug or alcohol testing, where the potential consequences of a positive test include the loss of employment, was considered a prima facie violation of section 7(1) of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000 c. H-14 (the “Act”). However, where testing constitutes a bona fide occupational requirement, the section 7(1) prohibition against discrimination based on a physical or mental disability does not apply. The Court held that being drug and alcohol free is a bona fide requirement for employees of a small remote Metis Settlement with ongoing concerns about serious drug and alcohol abuse by community members.

24. June 2003 0
Administrative law – Human rights complaints – Discrimination – Disability – Drug and alcohol testing – Aboriginal issues – Judicial review – Standard of review – Correctness Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement, [2003] A.J. No. 484, Alberta Court of Queen’s Bench, April 17, 2003, Bielby J. Elizabeth Metis Settlement (“the Settlement”) is ...

The Respondent was an employee of the Federal Government who suffered severe and long-standing respiratory problems. After a number of long term absences, the Respondent was dismissed on grounds that she was incapable of performing the duties of her office. The Respondent filed a complaint with the Canadian Human Rights Commission (“the Commission”). The Commission investigated the matter and dismissed the Respondent’s complaint on the grounds that discrimination had not been shown. The Respondent obtained a copy of the Commission’s investigation report and appealed the Commission’s decision to the Federal Court (Trial Division). The applications judge set aside the Commission’s decision to dismiss the claim on the grounds that the investigator had failed to include a great deal of information that he had obtained from the Ministry and consequently the Respondent did not have an opportunity to respond to the information. The Ministry appealed the Trial Division’s decision, arguing that the Commission’s decision-making process did not violate the Respondent’s right to procedural fairness. In allowing the appeal, the court noted that there was no basis for the notion that an investigator has a duty to disclose all information uncovered in the course of investigation to a complainant. Upon reviewing the investigation report, the court concluded that it was reasonable and adequate and that the Commission was entitled to some deference in their decision to dismiss a complaint.

27. May 2003 0
Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Commission – Investigative bodies – Duty to disclose evidence – Fairness – Judicial review – Breach of procedural fairness – Standard of review – Reasonableness – Patent unreasonableness Hutchinson v. Canada (Minister of the Environment), [2003] F.C.J. No. 439, Federal ...

On appeal, a Human Rights complainant failed to establish that an adjudicator under the Human Rights Code, R.S.N. 1990, c.H-14, erred in failing to find discrimination on the basis of disability or that the Trial Division judge erred on appeal. The fact that her employer considered her prior use of sick leave in determining which of two employees should be awarded the position of “lead hand” porter did not amount to discrimination on the basis of physical or mental disability as the complainant’s absences from work did form evidence of a pattern of illness or injury which would indicate that degree of permanence or impairment necessary to prove disability.

22. April 2003 0
Administrative law – Human rights complaints – Discrimination – Disability – Definition – Judicial review – Standard of review – Correctness Evans v. Health Care Corporation of St. John’s, [2003] N.J. No. 61, Newfoundland and Labrador Supreme Court – Court of Appeal, March 6, 2003, Cameron and Welsh JJ.A. and Russell J. (ex officio) The complainant hospital ...

A complainant to the Canadian Human Rights Commission (“Baltruweit”) was successful in his application to have the court overturn the decision of the Commission to dismiss his complaint at the investigative stage. The court held that the failure of the Commission to provide Baltruweit with the substance of the evidence of a legal opinion relating to the complaint was a breach of its duty of procedural fairness and the matter was referred back to the Commission for a re-determination.

28. January 2003 0
Administrative law – Human rights complaints – Discrimination – Disability – Evidence – Judicial review application – Breach of procedural fairness – Hearings – Disclosure – Solicitor-client privilege Baltruweit v. Canada (Attorney General), [2002] F.C.J. No. 1615, Federal Court of Canada – Trial Division, November 19, 2002, Gibson J. Baltruweit was employed by the Canadian Security Intelligence ...

Once a fishing guide employee has shown he has been denied employment because of his mental disability, “prima facie discrimination” is established. The onus then shifts to the employer to demonstrate that the “standard” imposed by it (reasonable safely on the water) was a bona fide occupational requirement. In doing so, the employer’s direct experience with the employee is relevant evidence. Matter remitted to be determined on proper consideration of evidence.

22. October 2002 0
Administrative law – Human rights complaints – Disability – Evidence – Duty to accommodate – Occupational requirement Oak Bay Marina Ltd. (c.o.b. Painter’s Lodge) v. British Columbia (Human Rights Commission), [2002] B.C.J. No. 2029, British Columbia Court of Appeal, September 10, 2002, Newbury, Hall and Saunders JJ.A. A fishing guide with a bipolar affective disorder ...