June 8, 2000 By: Denise Workun
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Over the past two years, the Supreme Court of Canada has demonstrated a marked trend in favour of expanding the substance and enforceability of human rights legislation across Canada.

Sexual Orientation Included as a Prohibited Ground of Discrimination

In Vriend v. Alberta, the words “sexual orientation” were read into the prohibited grounds of discrimination covered under Alberta’s Individual’s Rights Protection Act. Mr. Vriend was fired after disclosing his homosexuality. The Alberta Human Rights Commission refused to accept his complaint because the Act did not include sexual orientation as a prohibited ground of discrimination.

The Supreme Court found that the omission of sexual orientation from the Act was “on its face the very antithesis of the principles embodied in the legislation” and sent a message to all Albertans that “it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation.”

Injunctions Available to Enforce Human Rights Prohibitions

The mechanisms to enforce human rights protection were strengthened by the Supreme Court in Canada (Human Rights Commission) v. Canadian Liberty Net. The Canadian Human Rights Commission had received complaints regarding racist telephone messages made available by “Canadian Liberty Net”. Following its investigation, the Commission requested the appointment of a tribunal to decide whether these messages constituted a discriminatory practice.

The Commission then successfully applied to the Federal Court for an injunction prohibiting the dissemination of further phone messages until the tribunal had rendered a final order.

The Supreme Court upheld the Federal Court’s jurisdiction to issue an injunction in support of the prohibitions contained in the Canadian Human Rights Act, and found that the respondents had properly been held in contempt of the Federal Court’s injunction.

Access of Female Workers to Non-Traditional Occupations Enhanced

The right of access of female workers to non-traditional occupations was enhanced when the Supreme Court re-vamped the test for determining a bona fide occupational requirement in B. C. (Public Service Employee Relations Commission) v. B. C. Government and Service Employees’ Union. A female firefighter who had in the past performed her work satisfactorily, failed to meet a new minimum physical fitness standard, and was dismissed.

In reinstating the female firefighter to her former position, with compensation, the Supreme Court accepted evidence that most women have a lower aerobic capacity than most men and that the B. C. government’s prescribed aerobic capacity was not necessary for either men or women to perform the work of a firefighter safely and efficiently. The Court also rejected the government’s claim that accommodating the claimant would undermine the morale of the workforce, stating that the attitudes of those who seek to maintain a discriminatory practice cannot be determinative of whether the employer has accommodated the claimant to the point of undue hardship.

Following this decision, an employer must now justify an occupational standard on the basis that:

  1. the standard’s purpose is rationally connected to the performance of the job;
  2. the standard was adopted in an honest and good faith belief that it was necessary to the fulfilment
  3. of that legitimate work-related purpose; and
  4. the employer would suffer undue hardship if it accommodated individual employees who were unable to meet the prescribed occupational standard.

Reasonable Accommodation Applies to Service Standards

In B. C. (Superintendent of Motor Vehicles) v. B. C. (Council of Human Rights), the Supreme Court considered the appeal of Terry Grismer, who was denied a driver’s licence because he had homonymous hemianopsia (“H.H.”). Mr. Grismer’s condition eliminated most of his left side peripheral vision in both eyes. The Superintendent of Motor Vehicles had applied an inflexible “no H.H.” standard to deny Mr. Grismer a licence, without providing him an opportunity to prove that he could drive safely.

The Court determined that Mr. Grismer had the right to an individual assessment to determine whether he could drive without jeopardizing the Superintendent’s goal of reasonable road safety.

“Handicapped” Broadly Defined to Expand Protection to Workers with Medical Conditions

Most recently, the Supreme Court took account of the “socio-political dimension of handicap” in defining the scope of human rights protection available to workers suffering from medical conditions. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City) et al., three separate complaints had been filed by individuals who suffered from medical conditions which did not cause them any functional limitations. In each case, the complainants had been fired or deprived of employment because of the employers’ subjective perception of their respective handicaps, and not because of any inability to perform the duties of the positions in question.

The Supreme Court refused to accept that the word “handicap” means a physical or mental anomaly that necessarily results in functional limitations. Instead of focusing on the biomedical condition, the Court observed that the right to equality and protection against discrimination can be achieved only by recognizing that discriminatory acts may be based as much on perception, myth and stereotype as on the existence of actual functional limitations. In the result, the Court adopted a multi-dimensional approach whereby a physical limitation, an ailment, a social construct, a perceived limitation, or a combination of all of these factors may be considered in determining whether an individual is “handicapped” and therefore entitled to human rights protection.

Substantive Rights Eroded by Commissions’ Funding Constraints?

A decision is pending on an appeal heard by the Supreme Court in January, 2000, which may set back the Court’s expansive application of human rights legislation. In Blencoe v. British Columbia (Human Rights Commission), the B.C. Court of Appeal stayed a human rights proceeding on the basis that the Commission’s delay in processing the human rights complaint violated the respondent’s section 7 Charter right to liberty and security of the person. If the Supreme Court upholds the stay of proceedings in Blencoe, it is essential that governments respond immediately to ensure that the substantive human rights achieved are not eroded by process denied.

© 2002, Denise Workun. Denise Workun practices Human Rights and Employment Law with Nelligan O’Brien Payne LLP in Ottawa, and gratefully acknowledges the research assistance of Angela Habraken.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law