Update for Professionals

Number 2 – April, 2007

Canada Signs New UN Convention on the Rights of Persons with Disabilities

By Fay Faraday and Victoria Shen

On 30 March 2007, Canada joined 80 countries and the European Union in signing the United Nations’ new Convention on the Rights of Persons with Disabilities. While the United Nations has previously developed various non-binding declarations, a programme of action and standard rules for promoting equality for persons with disability, the Convention is significant because it is the first UN instrument to enshrine a comprehensive set of binding commitments to eradicate discrimination against persons with disabilities.

The Convention will be an important new tool for advancing the rights of persons with disabilities in Canada – both through lobbying and through litigation. Apart from setting out binding commitments, the Convention is important because it marks a significant “paradigm shift” in how the rights of persons with disabilities are addressed. It adopts the vision of equality, long advocated by disability rights advocates, that disability is socially constructed. This means that while individuals may have various physical, mental, intellectual or sensory impairments or functional limitations, the “disability” arises to the extent that social relations, institutions and environments are constructed without reference to the needs of persons with disabilities and erect barriers to their full and effective participation in society on an equal basis with others.

In conjunction with this analysis, the Convention set outs a detailed set of pro-active commitments which outline the breadth and depth of changes that are needed in all spheres of human interaction – economic, social, political, cultural and recreational – in order to secure equality. As such it will provide new leverage in advancing legal arguments before federal and provincial tribunals and courts with respect to the meaning of equality, minimal impairment of rights and accommodation to the point of undue hardship.

This article reviews the present status of the Convention, the key elements of the Convention, and its significance for advancing disability rights through litigation in federal and provincial courts and tribunals.

A. Current Status of the Convention

The Convention and its companion Optional Protocol were adopted by the UN General Assembly on 13 December 2006. It was open for signatures on 30 March 2007. As of mid-April 2006, 86 countries had signed the Convention itself and 45 had signed the Optional Protocol.

The Convention is enforced by requiring States to file comprehensive reports every four years outlining the measures taken and progress made to give effect to the obligations under the Convention. The reports are reviewed by a 12-person expert panel called the UN Committee on the Rights of Persons with Disabilities which in turn makes recommendations and suggestions to the State. The Optional Protocol provides a separate enforcement mechanism which gives individuals the right to file complaints claiming a violation of the Convention to which the State must respond. The Committee will examine the individual complaints and has the power to make suggestions and recommendations to the State. While Canada has signed the Convention, it has not signed the Optional Protocol.

The Convention will come into effect 30 days after 20 countries have ratified it. The Optional Protocol will come into effect 30 days after 10 countries ratify it. At this point, only Jamaica has formally ratified the Convention. While Canada has signed the Convention, further work is needed before Canada will ratify it. Because the Convention touches on many areas of provincial jurisdiction, the federal government is embarking on discussions with the provinces to secure agreement to ratification. It will be important for human rights advocates to monitor this process federally and in each province to ensure that ratification proceeds.

B. Overview of the Convention

The development of this UN Convention – the first of the 21st century – was unprecedented in that it involved extensive participation by members of civil society who are and represent persons with disabilities. This involvement is clearly apparent as the text of the Convention sets out a strong vision of what equality means from the perspectives of persons with disabilities. Canadian representatives were particularly involved in the development of the Convention and this influence is also apparent as the rights to equality pick up the language of equality from s. 15 of the Charter and the concept of reasonable accommodation that has developed under Canadian human rights statutes.

The Convention’s object is clearly expressed in Article 1 as aiming to secure full enjoyment of human rights for persons with disabilities. This Article also provides a broad understanding of who is included within the concept of persons with disabilities:

“The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

The fundamental right to equality is set out in language taken directly from s. 15 of the Canadian Charter of Rights and Freedoms. To this effect, Article 5 states as follows:

1. State Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Partes shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

The guiding principles of the Convention are set out in an extensive preamble which enshrines the social development model of disability rights and in Article 3 which outlines the key principles as:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for evolving capacities of children with disabilities and respect for the rights of children with disabilities to preserve their identities.

The Convention in Article 4 sets out general obligations on State Parties to ensure and promote “the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability”. To this end, State Parties are required to undertake a broad range of positive actions “to the maximum of its available resources ... with a view to achieving progressively the full realization of the rights” in the Convention. These pro-active commitments include the obligation to adopt all appropriate legislative, administrative and other measures to implement the rights recognized in the Convention; to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; to ensure public authorities and institutions conform with the Convention; to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; and to promote research and development with respect to universal design, accessible communications technologies, and mobility aids and training of those working with persons with disabilities to provide the assistance and services guaranteed by the Convention.

The Convention makes repeated references to States’ obligation to “closely consult with and actively involve persons with disabilities” in the “development of legislation and policies to implement the Convention and in other decision making-processes concerning issues relating to persons with disabilities” (Article 4). The Convention also makes repeated reference to the obligation to recognize that women and girls with disabilities are subject to particular discrimination and to ensure that all appropriate measures are taken to ensure the full development, advancement and empowerment of women with disabilities (see: Preamble, Article 6).

The Convention then sets out extensive pro-active obligations which itemize what steps are needed to ensure equality for persons with disabilities in all contexts.

The Convention reaffirms that persons with disabilities have the inherent right to life (Article 10), the right to legal capacity and the support that they may need to exercise their legal capacity (Article 12) and the right to equal access to justice, including the appropriate accommodations and supports to ensure that persons with disabilities can effectively exercise their legal rights (Article 13).

The Convention reaffirms the rights to liberty, security, and integrity of the person (Article 14 and 17). This includes freedom from torture, freedom from cruel, inhuman or degrading treatment, and freedom from forced medical or scientific experimentation (Article 15). In addition, the Convention guarantees freedom from exploitation, violence and abuse and provides a commitment from State parties to promote the recovery, rehabilitation and reintegration of victims of abuse (Article 16).

Persons with disabilities have a right to privacy (Article 22). They have the right to marry, found a family, and access to reproductive and family planning education (Article 23). Children with disabilities have an equal right to a family life and will not be separated from their parents unless it is in the best interest of the child.

On the issue of accessibility, the Convention requires countries to identify and eliminate obstacles and barriers to facilitate the access of persons with disabilities to the physical environment, transportation, public facilities, services, information and communication technologies (Article 9). It recognizes too that the freedom of expression is closely linked to facilitating the use of Braille, sign language and other accessible formats of communication (Article 21).

Persons with disabilities enjoy an equal right to live independently, to be included in the community, to choose where and with whom they live (Article 19). Their mobility and independence are to be fostered by facilitating access to mobility aids, devices, assistive technologies and live assistance at an affordable cost (Article 20).

The right to education under the Convention ensures equal access to primary and secondary education, vocational training, adult learning and lifelong learning (Article 24). During the preparatory meetings, there were extensive discussions on whether children with disabilities should be integrated with the general school population or whether the Convention should support segregated schooling. The current language endorses inclusive education and is entirely silent on segregated schools. This was a compromise which leaves a “space” for specialized systems.

The Convention recognizes that persons with disabilities have a right to work and employment and that the State has the obligation to ensure that reasonable accommodation is provided to persons with disabilities in the workplace (Article 27). The term “reasonable accommodation” is conceptually similar to the duty to accommodate to the point of undue hardship found under Canadian jurisprudence (Article 2).

The Convention recognizes that persons with disabilities are entitled to an adequate standard of living for themselves and their families and to adequate social protection (Article 28). They are entitled to the right to the highest attainable standard of health without discrimination on the basis of disability (Article 25) and to habilitation and rehabilitation services and programs to enable maximum independence (Article 26).

The Convention confirms rights to equality in political and public life, including the right to vote, to stand for election and hold office (Article 29). This requires voting procedures, facilities, and materials that are appropriate and accessible.

Through the Convention, States confirm the right to equal participation in cultural life, including access to cultural materials in accessible formats, and to equal participation in recreation, leisure and sports including participation in mainstream sporting events, as well as the development of disability-specific sporting and recreational activities. Persons with disabilities are also entitled to recognition and support for their specific cultural and linguistic identity (Article 30).

As set out above, Canada will be held accountable for compliance with the Convention through its period reports to the UN Committee on the Rights of Persons with Disabilities (Articles 33-37). As they have done in respect of Canada’s reports under other UN instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, human rights advocates can consider providing input into this process by preparing “shadow reports” on Canada’s compliance.

C. Significance of the Convention to Domestic LItigation

Despite its lengthy recitation of commitments and guarantees, the Convention does not set out new rights as such. The rights to equality without discrimination on the basis of disability have been guaranteed in domestic and international law for decades and most of the substantive rights set out in the Convention are enshrined in general language in other UN instruments.

What the Convention contributes to the law, however, that it provides a comprehensive catalogue of what the right to equality means in specific contexts and what actions are needed in order to implement the general guarantees of equality. It provides is a genuine understanding of what equality means from the perspective of persons with disabilities. It is a substantive equality document.

For this reason it has the potential to be an important tool in advancing the right to equality under domestic statutes.

Canadian courts have long ruled that international human rights instruments are not part of Canadian law unless they are incorporated by statute. They cannot be enforced directly before domestic courts and tribunals unless the federal Parliament or provincial legislature have passed domestic laws to implement them.

But this does not mean that international covenants have no place in domestic litigation. In fact, international instruments are frequently used to interpret domestic rights. They have been referred to increasingly over the past decade, particularly to give meaning to rights under the Charter and under human rights statutes.

The Supreme Court has long held that international human rights instruments can be relevant and persuasive sources for interpreting the meaning of rights that exist in domestic law. There are two main theories of statutory interpretation in support of this:

1. First, when enacting laws, the parliament or legislature is presumed to know the full legal context that is in existence, including international law. Parliament or legislature is then presumed to respect the values and principles enshrined in international law and, insofar as is possible, laws should be interpreted to reflects the values and principles that Canada has accepted in international law.

2. Second, international human rights instruments are an important source and aid for interpreting the general and open-textured language in the Charter and other domestic human rights law. The Supreme Court has long accepted that Canada’s international human rights obligations should inform the interpretation of the content of the rights guaranteed by the Charter and that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.” 1

While the Supreme Court has through a series of cases beginning with Eaton and Eldridge, increasingly moved toward a paradigm that recognizes that disability is socially constructed, Canadian courts and tribunals could benefit from further guidance on the details of what it takes to eradicate those socially constructed barriers. They could benefit from detailed guidance on what it means to build a society that is reflective of and grounded in a practice of equality characterized by social inclusion, participation, accessibility, independence, self-determination for persons with disabilities.

It is in the very detailed expressions of what the right to equality and accommodation looks like from the perspective of persons with disabilities that the Convention has the potential to be most helpful in litigation. The detailed expressions of the rights will help give substantive content to general equality principles and to develop substantive standards for accommodation. While arguments grounded in this perspective have been made for years by domestic disability rights advocates, having the principles and rights explicitly enshrined as fundamental international law should provide new leverage to the legal arguments.

To view a copy of the Convention on Rights for Persons with Disabilities, click here. To view a copy of the Optional Protocol, click here.

 

  1. Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, per Dickson C.J.C. While this statement was originally made in dissent, it has been repeatedly and unanimously endorsed by the Court.

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Supreme Court of Canada Grapples with the Social Construction of Disability: Council of Canadians with Disabilities v. Via Rail

By Jo-Anne Pickel

In its recent decision in Council of Canadians with Disabilities v. Via Rail, the Supreme Court of Canada continued to take tentative steps toward embracing a vision of equality for persons with disabilities that acknowledges the social construction of disability. The majority decision in Via Rail puts forward a vision of equality based on full inclusion, accessibility and independence rather than one in which people with disabilities are forced to accept lesser access to inferior rail service. However, the 5-4 split on the Court and the very different analysis adopted by the four dissenting judges shows just how tenuous the acceptance of this vision of equality remains. The Via Rail decision also highlights how important it will be for disability rights advocates to develop legal arguments aimed at solidifying this participatory vision of equality in Canadian law.

A. Facts

In 2000, Via Rail purchased a fleet of 139 “Renaissance” railway cars at discount prices. The cars were inaccessible to persons with disabilities in several respects: the cars did not have accessible washrooms, the wheelchair tie-down only accommodated a child’s wheelchair, the doorways were too narrow for most personal wheelchairs, and there was insufficient space for a service animal. Most strikingly, the so-called “accessible suite” service cars, separate train cars on which passengers in wheelchairs were to be accommodated, were in fact inaccessible as doors were too narrow and there was insufficient space in them to manoeuvre a wheelchair.

The Council of Canadians with Disabilities filed a complaint with the Canadian Transportation Agency (“CTA”) arguing that the cars posed an “undue obstacle to the mobility of persons with disabilities” that required corrective measures under the Transportation Act. The CTA issued a preliminary decision in which it identified a number of obstacles to the mobility of persons with disabilities and gave Via a chance to show why the obstacles were not undue and/or why it would not be reasonable to require Via to modify the cars. Via responded with only limited information and resisted the CTA’s repeated requests for costing information with respect to the recommended accommodations. Following an exchange of correspondence, the CTA issued a final decision requiring Via to modify 13 economy coach cars and 17 service cars out of the 139 cars purchased. Via successfully appealed the CTA’s decision to the Federal Court of Appeal. The Council of Canadians with Disabilities appealed.

B. Supreme Court of Canada Judgments

The Supreme Court of Canada allowed the appeal and restored the CTA’s decision. However, the split 5-4 decision reflects a division on the Court in regards to the proper analysis of equality rights for people with disabilities in Canada. As described below, the majority and dissent put forward two very different conceptual frameworks for addressing the equality rights of persons with disabilities. Not only do these frameworks speak to different visions of equality, but they also adopt two fundamentally different conceptions of disability and the contributing causes to disability in Canadian society.


i. Majority Judgment: Accommodation and Inclusion

The majority’s judgment at least partially accepts the paradigm of disability as being socially constructed rather than simply the result of personal impairments. That is, there is an acceptance within the majority judgment that socially constructed barriers cause, or at least contribute to, the disadvantages faced by persons with disabilities. The majority appeared to accept that social barriers, such as the barriers to accessing equal rail service in Via Rail, significantly hinder the full and equal participation of persons with disabilities in Canadian society. Presuming that there is a right to inclusion within the Transportation Act, the majority undertook a more pro-active analysis of accommodation. The outcome of the majority’s judgment is that persons with disabilities have a right to at least one accessible car per train that meets standards generally accepted by Via itself in the voluntary Rail Code adopted almost a decade ago in 1998.

In support of its conclusion that Via had discriminated against people with disabilities by failing to provide reasonable accommodations, the majority made the following findings:

* Via bought the cars at a discount price and spent $100 million to assemble and retrofit the cars. However, it had no plans to make the cars accessible to persons with disabilities as part of this retrofitting plan. Via argued that the cars were sufficiently accessible to persons with disabilities as its employees would transfer passengers into on-board wheelchairs and assist them with services such as washroom use and/or passengers with disabilities could continue to use the existing fleet (which is in fact in the process of being phased out).

* The majority pointed to the provisions of the voluntary Rail Code established through a Canadian Human Rights Commission process as well as the standards in place in several other jurisdictions to conclude that Via was required to accommodate personal wheelchairs as far as practicable. Physically transferring people into on-board wheelchairs was not acceptable. As the majority noted, the accommodation of personal wheelchairs is important as it enables persons with disabilities to access public services and facilities as independently as possible. As well, the use of personal wheelchairs minimizes the eliminates the physical risks and humiliation that can accompany transfers to alternative seating accommodations.

* The ad hoc provision of taxis by Via and the existence of some accessible routes on its network were not sufficient to discharge its duty to accommodate persons with disabilities. The majority concluded that the fact that there are accessible trains traveling along some of Via’s routes does not justify inaccessible trains on others. The majority held that it is the global network of rail services that should be accessible. As for the provision of alternative transportation in some circumstances, the majority noted the importance of full inclusion stating that “persons with disabilities are entitled to ride with other passengers, not consigned to separate facilities.”

* The majority did not accept Via’s argument that the cost of retrofitting some of the Renaissance cars to accommodate persons using personal wheelchairs would be unreasonable and represent an undue hardship. The majority upheld the CTA’s finding that there was no reasonable basis for Via’s cost argument since the Company steadfastly refused to provide costing information to show that required accommodations would cause it undue hardship. The Court cautioned that cost calculations can be deceptive as the benefits of eliminating discrimination are not easily reflected on a balance sheet. As the Court noted “[i]t will always seem demonstrably cheaper to maintain the status quo and not eliminate a discriminatory barrier.”


ii. Dissenting Judgement: Emphasis on Cost and Feasibility

The dissent put forward a quite different analysis of the equality rights issues in the case. One that uses the status quo, rather than a right to inclusion, as the baseline for analysis. Although the dissent did accept that the human rights accommodation framework set out in the Supreme Court’s Meiorin decision should be applied, the dissent emphasized that “perfection is not the standard” and that not every obstacle must be removed. The dissent adopted a very narrow focus on the costs of accommodation and accorded substantial deference to Via’s narrowly defined economic purposes for purchasing the Renaissance cars at a discount price. The outcome of the dissenting judgment for persons with disabilities would have been one accessible car per train on its existing fleet (which is in the process of being phased out) and a lower standard of accessibility on its new Renaissance fleet due to all of the obstacles identified in the CTA and majority’s judgments.

Applying the Meiorin analysis of the duty to accommodate, the four dissenting judges would have struck the CTA’s decision and remitted the matter back to it for redetermination primarily for the following reasons:

* The dissent rejected the idea that equality requires the accommodation of people’s personal wheelchairs. It criticized the CTA for accepting the standard that was set out in the non-binding Railway Code signed by Via and disregarded the fact that this same standard has been accepted in other jurisdictions.

* The dissent accepted Via’s “network defence”, finding that Via had put forward reasonable alternatives to accommodate people with disabilities through the use of its existing network of trains. According to the dissent, a reasonable alternative “may be a functional alternative, not necessarily an identical service, and the alternative need not be the same for all routes.”

* The dissent found that the CTA had not appropriately weighed the costs attached to the accommodations it had recommended. It commented that the CTA had failed to take into account the limitations on the amount of funding Via receives from the Federal Government and instead treated Via’s funding as “virtually unlimited”. In stark contrast to the majority’s caution against undervaluing the benefits associated with full inclusion and equality, the dissent deployed a strict costing approach that would weigh the costs of accommodation against the (estimated) benefits arising from the accommodation. In its view, where the costs of removing an obstacle are disproportionate to the significance of the obstacle to the mobility of persons with disabilities, the obstacle does not have to be removed.

Overall, the dissent emphasized costs on a balance sheet rather than full participation and inclusion. According to the dissent, the CTA “must be attuned to the feasibility of the orders it issues to the parties and the intrusiveness of its process into the management of the carrier.”

C. Significance of the Supreme Courts Judgments

Although the end result of the Supreme Court’s decision is positive, the very different visions of equality for persons with disabilities deployed in the two judgments suggests that courts will continue to grapple with what full equality, inclusion, and participation for persons with disabilities would look like. As least some judges on the Supreme Court, and other courts, recognize that it is social barriers that create the “disability” experienced by people who live with various physical, mental, intellectual or sensory impairments. However, as a reading of the dissenting judgment makes clear, this paradigm is far from having gained universal acceptance amongst judges. Continued legal advocacy will be required for a full and inclusive vision of equality to become more entrenched in Canadian law, advocacy that draws on the positive developments within cases such as Via Rail as well as developing international standards such as those found in the new UN Convention on the Rights of Persons with Disabilities (see article above).

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Securing the Health and Safety of Women Workers and Workers with Disabilities

By Mary Cornish and Michelle Dagnino

The protection of employees against sickness, disease and injury is one of the fundamental objectives of trade unions and professional organizations around the world. In securing that protection, it is essential that occupational health and safety measures address the specific needs and interests of employees who experience systemic discrimination by reasons of their sex, race, disability, ethnic origin or other similar factors. Occupational health and safety laws, policy and collective bargaining provisions must take into account that such employees face multiple and intersecting layers of disadvantage which contribute to their occupational health and safety risks. These include social, physical, psychological and emotional factors and include lack of time, the frequent precariousness of their work and their systemically lower wages. As a result, such vulnerable groups have complex needs and risk factors which must be addressed through:

a. a systemic analysis

b. a mapping approach based on collecting accurate data and research concerning the work women, employees with disabilities or other similarly disadvantaged workers do in the workplace and the occupational risks associated with that work;

c. developing an integrated enforcement strategy includes pro-active measures and prevention as well as litigation where necessary.

For example, research shows that

a. jobs held by women are more likely than those held by men to lead to occupational disease (as opposed to occupational accidents).

b. claims by female workers for musculoskeletal disorders are substantially less likely to be accepted than those of male workers.

c. women have specific health issues including violence and sexual and psychological harassment, stress related to balancing work and family, musculoskeletal disorders arising from repetitive tasks, adapting to work equipment based on the male worker and discrimination in relation to their access to compensation. See research of Katherine Lippel, Karen Messing and others at UQAM, Montreal, http://www.invisiblequifaitmal.uqam.ca/.

A. Women Focused Health and Safety Requirements

An excellent example of the difference resulting from a focused attention to women and gender equality are the Calvert Women’s Principles. In June, 2004, Calvert, in partnership with the United Nations Global Fund for Women (UNIFEM), launched these Principles which were the first global code of corporate conduct focused exclusively on empowering, advancing, and investing in women worldwide. These Principles which also cover areas such employment and income, and education, training and professional development have the following specific “Health Safety and Violence” clause which could be included in a collective agreement (separate provisions could also be adapted for employees with disabilities).

“Corporations will promote and strive to attain gender equality by adopting and implementing policies to secure the health and safety and well being of women workers. In this regard, companies agree to take all reasonable steps to:

a. Ensure that women's health and safety, including reproductive health, are protected in the workplace.
b. Prohibit and prevent all forms of violence in the workplace, including physical, sexual or verbal harassment, and have well-publicized procedures for reporting and responding to the same.
c. Ensure the safety of female employees and vendors in the workplace, in travel to and from the workplace and on company-related business.
d. Strive to eliminate unsafe working conditions and provide protection from exposure to hazardous or toxic chemicals in the workplace, particularly when those substances have known or suspected adverse effects on the health of women and children. In addition to these steps, provide full disclosure of possible hazards, and obtain prior informed consent from women who may be exposed to such substances in the workplace.
e. Prohibit discrimination against women with health problems, including individuals with AIDS/HIV positive status.
f. Allow time off from work for women employees seeking medical care or treatment, including family planning, counseling and reproductive health care.
g. Provide and make readily accessible information on domestic violence with information about available local resources.
h. Provide and make readily accessible information on reproductive health care with information about available local resources.

For the full text of these principles see: http://www.calvert.com/womensPrinciples.html

Mary Cornish was asked by the ILO to make a presentation to its April 17, 2007 International Workshop in Toronto on “Better Health and Safety for Suppliers”. Her presentation “Securing Health and Safety for Vulnerable Workers: A Focus on Women Workers and Workers with Disabilities in the Supply Chain”, prepared with the assistance of Michelle Dagnino, is available by clicking here. This presentation cites major reference works on occupational health and safety for women and workers with disabilities.

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The Latest Development in Almost Two Decades of Litigation: McKinnon v. Ontario (Ministry of Correctional Services)

By Janina Fogels and Kate Hughes

The Ontario Human Rights Tribunal has issued yet another scathing condemnation of resistant employers who do not address racism and poisoned work environments in McKinnon v. Ontario (Ministry of Correctional Services) 1. Previously, the Divisional Court and the Court of Appeal, in upholding earlier decisions of the Tribunal, described this as "a unique situation in which outrageous discrimination continued unabated.” 2 In this latest decision the Tribunal has issued a further 34 remedies. The new decision by adjudicator H. Albert Hubbard mandates compliance by the Ministry of Corrections with systemic remedial orders aimed at cleansing racism from correctional workplaces and re-issues individual remedies for the complainant. 3

While employed at the Toronto East Detention Centre, Mr. Michael McKinnon, a correctional officer of Aboriginal ancestry, complained to the Ontario Human Rights Commission that while at work, he was subjected to constant racial taunts and slurs. Co-workers and supervisors had targeted Mr. McKinnon and his wife, also a correctional officer, over a number of years. The original 1998 Tribunal ruling found that the Ministry had engaged in systemic racism with respect to the McKinnons. 4

Despite the finding, Mr. McKinnon had to return to the Tribunal as the Ministry failed to make changes ordered and resisted reform. Meanwhile, his tormentors kept their jobs, or enjoyed promotions and other perks. Substantial litigation took place to enforce the original orders and to deal with retaliatory harassment Mr. McKinnon faced for having challenged the behaviour in the first place. 5

Unprecedented Findings

This 2007 decision is important for its wide-ranging findings against the Ministry and its far-reaching remedies. The Tribunal found that the Ministry’s obligation of good faith and fair dealing in the context of compliance with the Tribunal’s orders was “at least as high as in the context of dismissing an employee” – i.e., the obligation as set out by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. (c.o.b. Public Press). 6 The Ministry acted in bad faith with respect to making misleading statements concerning the degree to which it was complying with the order to implement systemic change in the workplace. The deadline imposed by the previous orders was clearly not met. The finding of bad faith was also grounded in the fact that the Ministry suppressed and failed to disclose documents that were germane to the litigation, causing prejudice to Mr. McKinnon's conduct of the case.

This bad faith conduct supported a finding of retaliation/reprisal for the original and ongoing human rights complaints. The Ministry was also found to have failed in its obligations on many other counts: it failed to provide Mr. McKinnon with information relevant to his reinstatement and safe return to work, to comply with previous Tribunal orders that allegations of racial harassment and discrimination be handled by external investigators, to make compliance with the Tribunal's orders a part of managers' evaluations, and, to take action against managers mishandling the situation.

Further, the Ministry was found to have rewarded wrongdoers by providing these managers and employees with better treatment (lavish monetary payments, covering legal expenses, to which they had "no legal or moral entitlement") than it did to Mr. McKinnon or any employees or managers testifying on his behalf. Finally, the Deputy Minister was found to have failed to be accountable for the Tribunal orders, taking a damage-control approach rather than a true reform approach to the orders issued in 2002

Unprecedented Remedies

As a result of these findings, the Tribunal issued both systemic and individual remedies. Organizational change was identified as paramount. The Ministry must now establish a province-wide tracking system for human rights complaints, workplace discrimination and harassment grievances and policy matters. Third-party, anti-racism consultants have been given wide latitude to effect organizational change and to eradicate racism from the ranks of the Ministry. The Deputy Minister must now establish a transparent system of delegation to competent personnel in assisting in implementation responsibilities. Managers have been made responsible for taking timely and appropriate action in response to violations of the Ministry’s workplace discrimination and harassment policy and the Tribunal’s orders. Finally, the third-party consultants were ordered to consider the need for an Aboriginal Issues Coordinator for both staff and inmate issues.

With respect to individual relief, the Tribunal made directions to facilitate the successful re-integration of Mr. McKinnon and his wife, including job-shadowing and assignments to acting positions. Interestingly, the McKinnons have been offered the option to secure positions with the “Workplace Effectiveness Branch”, a new unit within the Ministry charged with managing conflicts within the institution. It also ordered $10,000 as damages for mental anguish caused by the reprisal and general damages and compensation for various losses to be assessed for both Mr. and Ms. McKinnon, as well as an independent assessment of the value of lost opportunities suffered by both since 2002.

It remains to be seen how much the McKinnons are able to recoup in terms of their careers, and how the Tribunal will evaluate the opportunities they lost over the last five years. For this, another submission to the Tribunal in the near future is required.

Conclusion

Under Bill 107, An Act to Amend the Human Rights Code, the Human Rights Tribunal has enhanced powers to award damages. In particular, the cap of $10,000 on damages for mental anguish that existed at the time this decision was made has been eliminated. In addition, a new Anti-Racism Secretariat now has the power to initial research and make recommendations to eliminate race-related discrimination. Workplaces rife with racist behaviour and managers who tolerate it will, it is hoped, no longer be able to evade institutional reform.

To read the Tribunal’s January 30, 2007 decision, please click here:

  1. [2007] O.H.R.T.D. No. 5.
  2. Her Majesty the Queen in Right of Ontario, et al. v. Michael McKinnon, et al. (unreported) December 16, 2003) at para. 21.
  3. [2007] O.H.R.T.D. No. 5.
  4. McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), 32 C.H.R.R. D.
  5. See McKinnon v. Ontario (Ministry of Correctional Services) (No.4) (1999), 35 C.H.R.R. D/191; (Ministry of Correctional Services) v. (Ontario) (Human Rights Comm.) (2001), 39 C.H.R.R. D/308. McKinnon v. Ontario (Ministry of Correctional Services)(No. 7) (2002), 45 C.H.R.R. D/61, Her Majesty the Queen in Right of Ontario, et al. v. Michael McKinnon, et al. (unreported) December 16, 2003, and Ontario v. McKinnon, [2004] O.J. No. 893.
  6. [1997] 3 S.C.R. 701.

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Update on Human Rights Reform – Ontario Human Rights Commission Introduces Pilot Project for Processing Complaints

By Fay Faraday


Bill 107 – An Act to Amend the Human Rights Code – which makes substantial changes to how human rights are enforced in the province received Royal Assent in December 2006. With the amendments, human rights claims will be filed directly with the Ontario Human Rights Tribunal rather than the Human Rights Commission, a new Human Rights Legal Support Centre will be created to provide assistance, support and representation to claimants, and the Ontario Human Rights Commission’s mandate will be re-oriented to focus on pro-active efforts to secure compliance with the Code and eliminate discrimination. Our analysis of that legislation and its implications for unions and human rights advocates is available by clicking here.

Most of the substantive changes introduced by Bill 107 will not come into effect until a date to be named by proclamation. In the meantime, however, the Ontario Human Rights Commission has announced other changes that will affect the current enforcement of human rights.

Until Bill 107 is proclaimed in effect, human rights complaints continue to be filed with the Ontario Human Rights Commission. In March 2007, the Ontario Human Rights Commission announced a pilot project that is underway to speed up the processing of complaints that are filed with the Commission. This is being done by setting strict time lines for mediation and fact-finding and requiring parties’ participation failing which a complaint may be referred for decision without further notice to the party.

Under the pilot project, when a complaint is served, the parties will be given set dates for a mediation and a fact-finding meeting. Parties are expected to attend at the set dates, although requests for extensions will be considered in cases of extreme personal hardship or for reasons that require accommodation under the Code.

If a party does not attend for mediation, the complaint may be dealt with under s.34 if a request has been made to dismiss it under s. 34, or the complaint could be referred for investigation. The parties are required to collect and produce all documents and other information requested by the investigator in advance of the fact-finding meeting.

The fact-finding meeting is part of the investigation process and involves both investigation and conciliation. It will usually be scheduled within six to eight weeks after the scheduled mediation meeting. If the respondent has not provided a response to the complaint, the investigator will give a deadline of 10 calendar days. If the respondent has not filed a response within that period, the complaint may be referred for decision by the Commission without further notice to the respondent.

If either party fails to attend at the fact-finding meeting, fails to cooperate in the fact-finding meeting, fails to produce the documents requested by the investigator, or cannot be located to complete the processing of the case, the complaint may be dismissed or referred to the Human Rights Tribunal without further notice to that party.

Further information about the Commission’s pilot project is posted on the Commission website.

In other developments directly connected with Bill 107, Ontario Human Rights Tribunal Chair Michael Gottheil is continuing to develop the Tribunal’s new processes and approaches to adjudication and has been holding “targeted advice sessions” with stakeholders on key elements of the Tribunal procedures. Before the Human Rights Code reforms are proclaimed in effect, the Tribunal will make its Draft Rules available for public review and comment. Further information can be obtained on the Human Rights Tribunal website.

Finally, Helena Birt has been appointed as the Transition Director of the Human Rights Legal Support Centre. Ms Birt was formerly the Manager of Family and Civil Duty Counsel Services for Legal Aid Ontario. As Transition Director, she will collaborate with the Human Rights Tribunal and Human Rights Commission to design and develop the new Human Rights Legal Support Centre.


Updates

A. Keays v. Honda

On 29 March 2007, the Supreme Court of Canada granted leave to appeal in the case of Keays v. Honda Canada which deals with a disabled employee who was terminated without just cause. In particular, the employee was awarded significant punitive damages because of the employer's bad faith and discriminatory conduct. An analysis of Keays v. Honda can be found in our November 2006 issue of Human Rights Update by clicking here.


B. Employment Equity

Employment Equity also remains a priority for Ontario workers. The Ontario Federation of Labour is holding an Employment Equity Roundtable on May 31, 2007. See: http://ofl.ca/index.php/about/index_in_in/employment_equity_roundtable/

In the absence of specialized employment equity legislation in Ontario, efforts are being made to develop new workplace strategies to address the need to create workplaces and conditions of work that reflect the diversity of Ontario’s working population. For racialized persons, persons with disabilities, aboriginal peoples, women and other vulnerable workers, there is a need to negotiate employment equity provisions in collective agreements. Alternatively, or in addition, existing anti-discrimination provisions in collective agreements must be used to require employers to take proactive steps to remove barriers and take positive measures to improve the representation of disadvantaged workers at all levels of the job hierarchy in workplaces. See: Strategies for Achieving Employment Equity

C. Pay Equity

Pay Equity continues to be an important agenda item for the labour and human rights movement. On May 2-3, 2007, the Pay Equity Network composed of trade unions and women’s groups will be meeting in Ottawa to discuss the way forward at the Federal level.

With globalization leading to women making up the dominant proportion of ever more precarious forms of employment – including home-based work, dependent and independent contracting – efforts need to be made to expand the scope of pay equity in order to end the discrimination in the diverse forms of women’s work. Click here to link to “Closing the Global Gender Pay Gap: Securing Justice for Women’s Work”, Mary Cornish’s article in the most recent volume of the Journal of Comparative Labour Law and Policy.

D. Human Rights

Mary Cornish has recently completed a Chapter “Securing Sustainable Human Rights Justice for Workers” for the forthcoming ILO Book on Labour Law in the 21st Century edited by Arturo Bronstein. The Chapter focuses the areas of gender and racial equality, equality for persons with disabilities and the protection of religious freedom and the right to privacy in developed and developing countries to provide guidance to the equality-seeking community for translating the human rights of workers into sustainable and just outcomes. A copy of the Chapter is available by clicking here.

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