Module 8 : Canadian Human Rights Laws

Question 1

s. 15 of the Canadian Charter of Rights and Freedoms

Answer 1

• every individual is equal before and under the law and has the right to the equal protection & equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
• it is a constitutional guarantee of equality
• case law has read in more (e.g. sexual orientation)

Question 2

The Ontario Human Rights Code

Answer 2

• section 1: right to equal treatment with respect to sercives, goods & facilities
• section 2: applies with respect to occupancy and accomodation
• section 3: general entitlement to equality in contracting
• section 5: prohibition against discrimination in employment
• these all lay within the private sphere

Question 3

HUman rights laws vs the Charter

Answer 3

• human rights laws apply to private actors, like employers & landlords & shop owners (private relationships - contract based)
• the charter applies to government actions (makes the government treat us good)

Question 4

Charter s. 15 vs Ontario Human Rights Code

Answer 4

• s. 15 Charter… constitutionally entrenched, applies to governmental action, recognizes analogous grounds of discrimination & administered through the courts
• Ontario Human Rights Code… Quasi-constitutional legislation that has primacy over other provincial legislation, applies to private actors, recognises only specific groups of discrimination & complaints are first resolved through Ontario HUman Rights Tribunal

Question 5

Stewart v Elk Valley Coal Corp (2017)

Answer 5

• drug addiction policy put in place that they have do disclose it but he didnt and then was caught in accident with cocaine in system and they fired him and he tried to fight back but there was no proof that It was a factor in getting fired, it was because of the policy that he fully signed to
• tried to say he wasnt aware of his addiction (this was irrelevant because it wasn’t disclosed aka 3rd one)
• Set out the test that tribunals and courts will use in determining whether there has been discrimination in a human rights case

Question 6

To establish a prima facie case of discrimination, the claimant must show on a balance of probabilities (more likely than not) that…

Answer 6

1. They posses a characteristic protected from discrimination under the Act (a prohibited ‘ground’ of discrimination under the Code)
2. They have experienced an adverse impact within a social area protected by the Code (adverse treatment with regard to his employment or a term of that employment)
3. That the protected characteristic was a factor in the adverse impact or negative consequence (disability was a factor in the adverse treatment)… this one was the issue in the case that the guy couldnt prove

Question 7

After the test…

Answer 7

• Once the three has been established the burden then goes to the employer to justify the conduct
• If they cannot justify the discrimination than it will be found to have occurred
• discrimination does not have to be intentional nor does the compliant need to prove that discrimination was the only factor

Question 8

Most often raised defence for employers back after it has been proved prima facie is the defence of the Bona Fide Occupational Requirement

Answer 8

• If the employer has not satisfied the duty to accommodate than they will not succeed in raising the defence of Bona Fide Occupational Requirement (BFOR)
• If the employer can, than the otherwise discriminatory act alleged by the complainant will be justified

Question 9

Bona Fide Occupational Requirement (BFOR)… To establish the defence of bona fide occupational requirement, the respondent employer must establish…

Answer 9

1. The standard was adopted for a purpose rationally connected to the performance of the job (determine what the impugned standard is generally designed to achieve)
2. The standard was adopted in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose
3. The standard is reasonably necessary to the accomplishment of a legitimate work-related purpose

Question 10

3 in it

Answer 10

• The duty to accommodate… A legal requirement in human rights law to take steps to remove discriminatory barriers to employment, including altering schedules, rules or work patterns or changing the physical design of a workplace
• The limit of undo hardship…The legitimate defence that an employer may raise to justify why it could not provide an accommodation to an employee… This standard is demanding and requires the employer to demonstrate that significant difficulties - beyond mere inconvenience - would result if it had to accommodate the employee (most of the work is done here)

Question 11

British Columbia v. BCGSEU… (maiori)

Answer 11

• gives us BFOR test
• Women got hired by the British Columbia government to be a forest fighter… got fired because she could not run fast enough in the aerobic fitness standard with all her fire equipment on by 47 seconds because the government tested everyone who already had jobs and stuff, and she took it to court based on discrimination of sex
• The studies that the basis for the standard came form were basically males who were tested
• They found that it did discriminate on the basis of gender & goes next to employer and have to do 3 step test
• 1 and 2 were chill on the test, they had proved them both, the motives and everything where good
• screwed on 3rd step… so employer had not established BFOR (Could not show that running 2.5 km in 11 minutes in full gear as opposed to doing it in 11:49 was reasonably necessary for the safe and efficient performance of firefighting)