Challenging the Safe Streets Act By: Nicolas Di Nardo A law created in 1999 known as the Safe Streets Act is being challenged by the Fair Change Community Legal Clinic on the basis that it discriminates against people with mental health and addiction issues. Leading this dispute is Gerry Williams, along with the Fair Change Community Legal Clinic. Williams shares his experiences of being homeless and the amount of fines he was given over 9 years while trying to survive. Since then, he has overcome homelessness, has a job and a place to live. Gerry suffered from alcoholism and undiagnosed mental health issues, but is a very different person today. Before he was able to get the help he needed to thrive, he suffered. He managed to be handed $65,000 in fines over 9 years ago while homeless, all of which were given to him through provincial offences and convictions. These included: Loitering Littering Drinking in public Trespassing Gerry determined that approximately $10,000 worth of his tickets were issued through the Safe Streets Act while he was panhandling to survive. This law was intended to limit the aggressive behaviour brought on by people asking for money on the street, which also included squeegeeing. Williams is now part of a constitutional challenge to the Act, which was filed by the legal clinic last Wednesday. Fair Change has spoken up about the issues with this law, stating it is: Impacting people with mental health and addiction issues Costing the public $2 million in court fees and paperwork Fines under the act will likely never be paid Ruined credit scores, limiting opportunity for housing, drivers license, or work after being convicted under the Act Hurts people that are already vulnerable Increases homelessness Poverty remains the most pressing human rights issue in Canada, however, Joanna Nefs says the law is not doing anything to help fix that. Laws that are criminalizing people in poverty does not line up with the goal to end poverty, or the Human Rights Code, which Renu Mandhane, chief Commissioner for the Ontario Human Rights Commission is making reference to the Safe Streets Act as one of those laws. Fair Change is looking for the law to be repealed rather than fighting it, and this is not the first time. MPP Cheri DiNovo tabled private members’ bills in 2015 and 2016 for the Act to be repealed. Please check back to our blog for more update and developments to this story. Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJune 26, 2017June 22, 2020
Requiring Customers to Come to Stores Has Been Deemed Discriminatory By: Michelle Cook, Summer Law Student Could companies that require their customers to come into their physical stores be guilty of discrimination? A human rights adjudicator seems to think so. In Mills v Bell Mobility Inc, Canadian Human Rights Tribunal member Edward Lustig awarded $10,000 plus interest in compensation for Ms. Mills’ pain and suffering as a result of being required to attend at a Bell store. The Tribunal found that a phone activation policy that required customers to physically present themselves in the company’s stores, thereby endangering the health of some disabled persons, amounted to discrimination based on disability, in contravention of the Canadian Human Rights Act. Bell, one of the many companies that has such a policy, could not justify why disabled persons could not be accommodated through other methods of communication, such as Skype or Facetime. Ms. Mills was disabled as a result of cancer in late 2013 and a stroke that nearly killed her in 2014. Ms. Mills was bedridden, extremely weak and partially paralyzed. Her physician has instructed her to stay home, unless an emergency required her to leave. Her son had made attempts to activate her phone on her behalf, including an offer to come to the store with all Ms. Mills’ identification documents, including a valid Power of Attorney. However, Bell stood by their in-person policy and took the position that that its activation standards policy was necessary in order to combat identity fraud. Ms. Mills eventually relented and attended at a store to have her phone activated. She then commenced a human rights complaint. Interestingly, while she was ultimately successful in getting an award for pain and suffering, the CHRT member refused to find that Bell had committed reckless or wilful discrimination, citing its reputation as a company that “usually cares about its customers, including disabled Canadians,” especially its efforts to combat mental health stigma. For more commentary see: Law Times News Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJune 26, 2017June 22, 2020
The Fight Against Solitary Confinement By: Katelyn Bell, Summer Law Student The issue of solitary confinement has been long-standing in Canada. Solitary confinement is meant to be ordered on a temporary basis, not on an indefinite one. In recent years, the issue has come to the forefront, after several Canadian inmates committed suicide while in solitary. Ten years ago, Ashley Smith, a 19 year-old inmate in solitary, strangled herself to death in her cell while prison guards watched and videotaped it. Smith spent a total of 1,047 days in solitary confinement, and had been placed on high suicide watch. Unquestionably, Smith’s lengthy stay in solitary was a contributing factor in her suicide. Calls to limit the segregation of prisoners grew much louder after Smith’s 2007 death, but unfortunately, the problem has persisted. Last fall, a prison guard’s tip-off to Ontario’s chief human-rights commissioner revealed that Adam Capay – a 23 year old inmate – had spent over four years in solitary confinement, totalling 1,636 days: segregation analogous to torture. Without question, the rights of those individuals confined to a single cell for such long periods of times violates their rights under the Canadian Charter of Rights and Freedoms. Under the Charter, Canadians have the right to life, liberty and security of the person, the right against unfair detainment, and the right to be free from cruel and unusual punishment. In British Columbia, a trial seeking to challenge Canada’s solitary confinement prison policies as “cruel and unusual punishment” is scheduled to begin on July 4, 2017. However, the Liberals are looking to halt this trial. Why? Because the government is finally working on a solution to the inappropriate use of segregation. An application filed with the Supreme Court of British Columbia on June 20, 2017 argues that proceeding with the July trial would be a waste of court resources, because the concerns about prolonged segregation are being addressed in new legislation – Bill C-56. So, how are they being addressed? The legislation introduced by the Liberals limits the amount of time federal inmates can be held in segregation cells. If Bill C-56 is passed, inmates would not be allowed to be held more than 15 days in solitary. But before the 15-day limit, Correctional Service Canada will have an 18-month transition period, during which time the cap will be set at 21 days. These proposed time limits will of course be subject to safety and security requirements, and also, it must be ensured that other reasonable alternatives are available. But 15 days is a long time… Most of us have experienced “one-of-those-days,” where whether at work, home, or anywhere, the day seems to go on forever. Imagine 15 of those. In a row. Although the new legislation will limit inappropriate segregation, 15 days still seems to be far too long to be in solitary. Again, the analogy can be drawn to torture. While some argue to lessen the allotment from 15 to 5, others demand a total ban on segregation, calling it cruel and unusual punishment, and thereby a violation of the Charter. (see s. 12) Ultimately, the bill is a step in the right direction. But because the bill has only received its first reading, there is no guarantee that the bill will be enacted. And if it is enacted, its form remains uncertain, as Parliament may choose to amend the legislation. For this reason, those behind the lawsuit – the John Howard Society and the B.C. Civil Liberties Association – want the July 4 trial to proceed. The government’s application to adjourn the trial was heard on Friday in Vancouver. Justice Peter Leask reserved his decision, and the parties are due back in court tomorrow. Devry Smith Frank LLP is a full-service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal Law, Human Rights LawJune 26, 2017June 22, 2020
Bill C-16: Proud to Extend Protections to Transgender and Other Gender-Diverse Persons June is Pride Month, when we celebrate sexual diversity and gender variance in the context of gains made by the Lesbian Gay Bisexual and Transgender (LGBT) communities. It is thus fitting that the Canadian Senate last week passed Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code to protect gender identity and gender expression. Gender identity is broadly defined as one’s personal experience of their own sex, their internal sense of being male, female, a combination thereof or neither. Gender expression is the public expression of that identity, through markers such as clothing, speech and body language. Now that better acceptance and legal protection has been secured, after years of advocacy, for the LGB communities, issues facing the T(ransgender) community have moved to the fore. Issues of gender identity and expression have recently featured prominently in the news, particularly south of the border with the introduction of “bathroom bills” that restrict use of a washroom to one’s biological sex. These issues have highlighted the discrimination, isolation and violence faced on a daily basis by trans and gender diverse people. To address the vulnerability of the trans/gender diverse community, the Bill amends: sections 2 and 3 of the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination; and subsections 318(4) and 718.2(a)(i) of the Criminal Code to include gender identity and expression in the definition of an identifiably group and to extend the protection of hate propaganda to persons who are distinguished by gender identity and gender expression. Evidence that violence or hate was aimed specifically against transgender or other gender diverse persons on account of that identity or expression will now constitute an aggravating circumstance court can take into account when imposing a sentence for the crime. Bill C-16 began life in 2005 as a Private Members Bill. After languishing for such a long period of time, it was taken up by the current federal Liberal government as part of the government’s legislative agenda to facilitate its passage. Even still, approval by the Senate was not a sure thing in the face of criticism that the amendments infringed on freedom of expression and/or promoted a lifestyle not every Canadian supported. The argument that protecting minority groups infringes on free speech is often used when those rights are new to our social fabric. Once established, we wonder why there was ever an issue. Indeed, the protections afforded by Bill C-16, in the view of this author, serve to promote freedom of (gender and sexual) expression. In moving to better protect gender diversity and expression Canada again proves its global leadership in the promotion of human rights and dignity. It will make celebration of sexuality and diversity this year particularly sweet. Happy Pride! Marc Kemerer practices fertility and reproductive law at Devry Smith Frank LLP By Fauzan SiddiquiBlog, Human Rights LawJune 20, 2017June 22, 2020
Air Passenger Bill: Does it Really Protect Passenger Rights? Transportation Minister Marc Garneau introduced a Passenger Bill of Rights which is included in a package of amendments to the Canada Transportation Act. This bill is being introduced as a result of the United Airlines incident, where a passenger was dragged from a plane in Chicago after he refused to give up his seat on an overbooked flight. That incident was the first of many for multiple airlines that suffered from negative PR in the last month or so. This bill, known as Bill C-49 or the Passenger Bill of Rights, however, has been said to protect the airlines, not the passengers. The main purpose of the bill is to have the Canadian Transportation Agency (CTA) set clear standards for how passengers can be treated, which include: Situations where they are denied to board Lost baggage Delays while on the tarmac A passenger rights advocate, Gabor Lukacs, has concerns with this bill. The bill does not outline penalties for companies that do mistreat customers, and complaints must be filed by the person affected, which means that action cannot be taken against airlines for problems such as overbooking of flights. A consumer group labels this bill as ‘useless’ to passengers, as it does not enforce the rights of travellers, and does not include new sanctions against airlines if they were to break the rules. See the full list of concerns here. Canada is well behind in the area of passenger rights, seeing as sixty countries have some form of passenger rights legislation, with the U.S. and E.U. as the only ones with compensation rules established for passengers that get bumped from flights. Unfortunately, with the wording in this legislation, it leaves the Canadian Transportation Agency to create and implement the standards at some point in the future, while our Canadian airlines are suffering in the satisfaction category with Air Canada dead last in North America, and WestJet second-last in the low-cost carrier category. Complaints have increased significantly against Canadian carriers between 2011 and 2016, and if the CTA does not implement a set of rights that protect passengers, they may continue to receive complaints until something is done. If you are in need of representation or have any questions or concerns, please do not hesitate to contact the lawyers of Devry Smith Frank LLP today at 416-449-1400, or browse our website for more information. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawMay 23, 2017June 23, 2020
General Electric Workers Exposed to Toxic Chemicals for Decades Between 1945 and 2000, General Electric’s factory in Peterborough was the epicentre for many work-related illnesses among employees and retirees, a study of chemical exposures at the plant reveals. This, however, is nothing new. The community has been saying this for quite some time, and the 173-page report confirms this. GE’s plant workers built household appliances all the way to diesel locomotive engines and fuel cells for nuclear reactors. The workers were exposed to more than 3,000 toxic chemicals in the process, some of which include 40 to be cancer-causing. Workers were exposed to these chemicals at levels hundreds of times higher than what is now considered safe, says the report. General Electric allowed workers in the past to handle the toxic substances without protective gear, which they were rarely offered. As they were paid by the piece and not by the hour in the 1980s, there was an incentive to cut corners. Seeing as about 500 lbs. of asbestos was used daily and workers did not have respiratory protection or proper ventilation, it is no wonder these employees have had trouble with their health after being exposed. The managers also knew the harm that these chemicals can cause to people without the proper protection, as early as the 1920s and 1930s. The lead was another huge component that circulated the plant. Workers used about 40,000 lbs. in a week to produce PVC pellets until the 1980s, and also experience daily exposure to: Solvents Welding Fumes Epoxy Resins PCBs Beryllium Uranium Daily exposure to the above without proper protection is extremely dangerous. However, around 2000 is when safety measures were being mandated, and since then, GE’s plant is a smaller operation, and spotless. The report will be used to support occupational disease claims that were previously denied by Ontario’s Workplace Safety and Insurance Board (the “WSIB”). Hundreds have filed compensation claims, and unfortunately, Ontario’s worker compensation system does not allow employees to sue their employer when they have been given the ability to claim benefits when they are injured or fall ill because of work. The WSIB has been given 660 compensation claims from GE workers since 2004, with 280 accepted, more than half withdrawn, abandoned or rejected because of insufficient evidence that the conditions were work-related. “Workers that suffered from working within the plant were forced, for many years, to provide proof of their working conditions, only to be told this is anecdotal,” said Sue James, whose father worked at the plant for 30 years and died of lung and spinal cancer, believed to have been caused by exposure to the chemicals used in GE’s plant. A former employee believes he developed colorectal cancer because he worked more than 22 years under asbestos-wrapped pipes, which would occasionally shed while he worked. This employee, Roger Fowler, was one of the former employees who worked on the report. With this investigation drawing some attention, the provincial labour ministry announced it will be setting up an occupational disease response team by the end of the year to focus on chemical exposure prevention and help sick workers file compensation claims. 11 retirees worked as advisers on this report. Together, this committee along with health researchers Bob and Dale DeMatteo, interviewed over 75 former workers to gather information on working conditions and production processes. The data collected from these workers was coupled with data from labour ministry inspection reports, joint health and safety committee minutes, company memos, industrial hygiene literature and other documents, gathered by the union. At Devry Smith Frank LLP we provide a full range of services to suit any need. If you are seeking information or representation for a similar situation, please contact the lawyers of our Health and Safety and Employment Law Teams today. If you require more information please call us today at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Human Rights LawMay 19, 2017June 23, 2020
A Threat to Access-To-Justice in Ontario Legal aid is a central component of the Canadian justice system, and of justice systems elsewhere in the world. Legal aid helps those individuals who are otherwise unable to afford legal representation and access to the court system. No matter the legal issue – be it a landlord/tenant dispute, or a child custody dispute – legal aid is available to low-income Canadians in order to promote access to justice. In 1998, the Ontario government enacted the Legal Aid Services Act. This Act speaks to the Province’s commitment to legal aid and access-to-justice. However, recent statistics have revealed that our Province’s commitment may have extended a bit too far, financially speaking. As reported by Legal Aid Ontario (LAO) this past January, the agency has a deficit of approximately $26-million. Not surprisingly, the agency will require “significant support to enable it to meet its targets,” one of which includes assisting more than 1 million Ontarians annually. LAO has had to make some difficult decisions regarding cutbacks in order to remain afloat. One of the most notable decisions made by LAO is that the agency will no longer cover costs for a criminal dispute unless there is a “substantial likelihood of incarceration.” What this means is that many low-income Ontarians are now left with no choice but to represent themselves. Not only is this stressful for the self-represented litigant – who if convicted, may lose their job or be faced with a fine they’re physically unable to pay – but it also eats up more oh-so-valuable court time, as the Judge has a duty to ensure the self-rep is given a fair trial. In order to appropriately exercise this duty, the Judge is required to aid the accused in the proper conduct of his/her defence, and guide him/her throughout the trial in order to ensure the defence is brought out suitably. In January, Attorney General Yasir Naqvi ordered a third-party review of LAO’s finances. The review was conducted by Deloitte, who found that the changes implemented by LAO thus far are insufficient, and more must be done in order for the society to realize significant savings. LAO’s president and CEO, David Field, disagrees with Deloitte’s findings and states that LAO is “happy with the progress we’re making [since December].” However, when one considers the recent influx of refugees to Canada, the picture is again worrisome. Many refugees are low-income, which means that the LAO is likely to face increasing demands for services in the near future, and this is a demand they’ll be unable to meet. Cooperation from the Federal government is essential to resolving the problems faced by LAO, and by legal aid agencies across Canada. Ultimately, the Minister of Justice and the Minister of Finance must take action to initiate federal funding for legal aid, not only for Ontario but for Canada as a whole. And with regards to Canadian taxpayers, though we all have a lot to say about the uses to which our money is being put, it’s hard to argue against improvements to the justice system, especially when such improvements are so vital for so many Canadians. If you are in need of representation, please contact the full-service law firm of Devry Smith Frank LLP at 416-449-1400 for more information, or visit our website today. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawMay 14, 2017June 23, 2020
Ontario Government Moves to Dismiss Challenge to Hydro One Privatization Last Tuesday, Ontario’s Liberal government moved to strike a lawsuit challenging the further privatization of Hydro One. If successful, they’ll have removed a major obstacle to the controversial scheme they claim will fund major infrastructure investments. Energy prices in Ontario have been occupying headlines for years. Regardless of where you stand politically, it’s difficult to deny there’s a problem. The impact of hefty hydro bills has been felt by Ontarians across the board. Individuals and families have been forced to allocate more of their scarce income to keep the heat and lights on – so much so that some Ontario families have even been pushed into poverty (as reported here). Businesses, perhaps especially manufacturers, struggle to stay competitive against rivals with much slimmer electricity bills. Just throw the term “delivery charges” around at the dinner table, and watch the sparks fly. “But others pay even more,” you might say. That may be true, but the problem lies not only in the rates themselves but in the pace of their escalation (see, e.g., here). As the Consumer Policy Institute observes, Ontario’s rates are indeed the highest in Canada, but not in North America. Cities like San Francisco, Detroit and New York actually pay more per kilowatt/hour. Crucially, however, these markets have had time to adjust to these costs, meaning the burden is felt more sharply in Ontario, where prices have risen sharply in recent years. Any way you slice it, the average Ontario resident is probably none too pleased with their hydro bill. To the extent that Ontarians blame their government for it, our elected representatives may also stand to lose. They’ve certainly not ignored the issue. The Ontario Liberal government under Kathleen Wynne has been active on this issue since the latter was sworn in in February 2013. What began as a pledge not to privatize Hydro One, morphed into a ‘partial privatization’ whereby 60% of Ontario’s flagship energy company was to be sold into private hands. Half that amount has already been sold, with the remaining 30% slated for the same fate. The goal, says the government, is to raise approximately $9 billion to fund much-needed investment in infrastructure and public transit. Predictably, this (semi)privatization scheme garnered a lot of attention, not least from organized labour. This is a familiar story. Fans of history will remember that this debate over the value of privatization has persisted at least since the UK’s Margaret Thatcher ‘took on the unions” in the 1980’s. It might seem fitting then, that this scheme has prompted a legal battle between the country’s largest provincial government, the Ontario Liberals, and the country’s largest union, CUPE (the Canadian Union of Public Employees). For all its continuity, today’s dynamics are a strange take on history. That we have Canada’s traditionally centre-left mainstay party pushing for privatization while the conservative opposition decries their approach might leave some people scratching their heads – but that’s another blog. Suffice it to say here that the economic and distributive impact of privatization is debated, and it is not obvious that the provincial treasury will benefit from it, even in the medium-term (see, e.g., this article). In short, this issue doesn’t fit neatly into traditional party divisions. Last fall, CUPE’s president Fred Hahn (on behalf of the union) brought the suit against the Ontario government, alleging that the sale of Hydro One shares, and, in particular certain fundraisers, constituted “misfeasance in public office”. While the focus of the suit, technically, is on a December 7, 2015 fundraiser in which party fundraising and government business are alleged to have inappropriately overlapped, Mr. Hahn’s lawyer, Darrell Brown, has candidly acknowledged that “the ultimate objective is to convince the government to stop any further sale” (as reported here). Whether you agree or not, it’s no secret that CUPE, like other labour unions, is ideologically opposed to privatization. Yet the government, for it’s part, certainly doesn’t seem to be looking for ideological debate. Last Tuesday the government notified CUPE it would be bringing a motion to strike – i.e. dismiss – the suit. If successful, the case will be dead in the water. The government claims the suit amounts to an “abuse of process” in that Integrity Commissioner J. David Wake already addressed the matter and found no illegal activity. CUPE, on the other hand, views this strategy as a means of delaying and ultimately avoiding, a public trial. The motion will likely be heard in the spring. Even if CUPE can successfully stave off dismissal at this early stage, they will still need to make their case at trial. It may prove an uphill battle. The Liberal government has little to gain from a public mudslinging match, and a motion to strike is a legally legitimate means of avoiding one. Whether it’s a wise political calculation remains to be seen. * * * * * There are two sides to every story. The talented and experienced lawyers at Devry Smith Frank LLP can help you tell yours, while ensuring your legal rights are protected. If you or someone you know is in need of legal representation, please do not hesitate to contact us at 416-449-1400 in Toronto, 705-812-2100 in Barrie, or 289-638-3171 in Whitby, or send us an email at info@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawFebruary 8, 2017June 16, 2020
Making Canadian Courts Great Again Trump’s upcoming inauguration for our neighbour down south is looming as many of us are still coming to terms with the election results. To say that the election was a controversial and polarizing one is a gross understatement. Canada tuned in, as social media, newspapers, radio stations and everything in between exploded with every tweet, every colourful comment made at the debates, and pieces dug up from the candidates’ past. Everyone woke up on November 9, 2016, to the news of Trump’s stunning victory. However, for some Canadians that morning, Trump hit much closer to home. On the morning of November 9, 2016, Judge Bernd Zabel walked into the courtroom wearing a “Make America Great Again” cap before placing it on the bench in front of him. In the same courtroom on that day, he voiced his support for Donald Trump. This sparked outrage as the future president-elect has appeared to condone sexual assault on women and threaten various ethnic and sexual minorities, among others. However, more disturbing and problematic is the fact that judges, otherwise seen as the beacons of justice in Canada, are required to be impartial and neutral. One of the underlying values of the Canadian justice system, judicial independence, requires judges to make decisions pursuant to the rule of law absent any political interference. The Canadian Judicial Council provides that “Judges should strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment.” The legal community reacted instantly with many calling for Justice Zabel to be disciplined. Justice Zabel quickly apologized the next week – “I wish to apologize for my misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election”. However, just as an apology cannot absolve someone of wrongdoing or undo a contract, it cannot take back words that were said. The action was taken quickly, as Justice Zabel has now been suspended, and can no longer hear cases in court as of December 21, 2016. While Justice Zabel’s future remains uncertain, we know that Canadian courts strive to be better than great. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJanuary 18, 2017June 16, 2020
(Canada) Attorney General v. Johnstone and Canadian Human Rights Commission This blog is written by our law summer student, Michelle Farb An employer’s failing to accommodate an employee’s childcare needs constitutes “family status” discrimination under the Canadian Human Rights Act. Fiona Johnstone, along with her husband, were both employed by the Canada Border Services Agency as border services officers at Toronto’s Pearson Airport since 1998. Fiona and her husband were both required to work rotating shifts. When Fiona returned to work after her maternity leave in January 2003, she was unable to secure childcare that would allow her to work her rotating shift schedule. She requested an accommodation in the form of three 13-hour fixed shifts per week. Her request was denied by the agency on the basis that they would not provide full-time employees with fixed shifts for child-rearing responsibilities, but they would provide them for medical or religious reasons. Due to her denial, she was given part-time hours, with less pay for overtime hours and a pro-rated pension and pro-rated benefits. After the birth of her second child in 2005, she made the same request, and was denied again. In April 2004, Fiona filed a complaint with the Canadian Human Rights Commission, on the basis that the agency discriminated against her on the prohibited ground of family status, contrary to s. 7(b) and 10 of the Canadian Human Rights Act. The Canadian Human Rights Tribunal agreed with Fiona and ruled that refusing to accommodate child-care obligations constituted discrimination on the basis of family status. In response, the federal government then filed an application for judicial review of the Tribunal’s decision. The Court ultimately dismissed the government’s request for judicial review, and upheld the Tribunal’s determination that the ground of “family status” includes child-rearing and parental obligations. The Tribunal’s conclusion was reasonable due to Fiona’s evidence of her unsuccessful attempts to find appropriate childcare, her failure to be accommodated by the agency, and the agency’s failure to demonstrate they would experience undue hardship if they accommodated her. Federal Court Judge Leonard Mandamin emphasized that the legislation should be given a liberal interpretation in order to fulfill its purpose, but noted that “not every tension that arises in the context of work-life balance can or should be addressed by human rights jurisprudence.” The judge rejected the “serious interference” test adopted in the B.C. case of Campbell River, which stated that childcare obligations arising out of discrimination claims based on family status have to be of substance and the complaint must have tried to be accommodated, and must have tried to be reconciled with family and work obligations. In this case, the judge endorsed a broader approach, and defined the test as “[A]ny significant interference with a substantial parental obligation is serious. Parental obligations to the child may be met in a number of different ways. It is when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that the case for prima facie discrimination based on family status is made out.” He emphasized that family status discrimination should be governed by the same broad criteria as other alleged grounds of discrimination. Full link to decision: www.canlii.org. If you have any questions about whether this applies to you, please contact one of the employment law lawyers at Devry Smith Frank LLP. For more information on the ongoing development of family status within the case law, or childcare obligations, as well as other dependency relationships which exist within families in relation to what the law says about developing &implementing policies, such as eldercare obligations, contact us to learn more about good faith obligations of both the employer and employee. The law offices of Devry Smith Frank LLP are located in the Lawrence and Don Mills location of Toronto and we have a lot of free parking. By Fauzan SiddiquiBlog, Employment Law, Human Rights LawJune 3, 2013November 24, 2020