During the 2000-2001 fiscal year, the Legal Services Branch received the following: 11 Board of Inquiry decisions, 12 judicial review decisions, 9 appeal decisions and six Supreme Court of Canada decisions (five applications for leave to appeal dismissed; one successful intervention).
At the end of the 2000-2001 fiscal year, the ongoing litigation in the Legal Services Branch comprised: 94 Board of Inquiry files, nine judicial reviews, seven appeals and one case at the Supreme Court of Canada.
The following are highlights of some of the significant decisions and cases over the past year.
Blencoe v. British Columbia (Human Rights Commission)
Supreme Court of Canada (Intervention)
Decision: October 5, 2000
Robin Blencoe, the respondent to several human rights complaints of sexual harassment in 1995, had successfully argued before the British Columbia Court of Appeal that the two-year delay in processing the complaints violated his right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms (Charter), and that a stay of the proceedings against him was an appropriate remedy. The Supreme Court of Canada held that the appropriate remedy for the abuse of process was not a stay but rather an order for an expedited hearing.
Current status: The Supreme Court of Canada set aside the decision of the British Columbia Court of Appeal. The British Columbia Human Rights Tribunal proceeded with the hearing of the complaints on their merits.
Entrop v. Imperial Oil
Ontario Court of Appeal Decision: July 21, 2000
Martin Entrop had been employed by Imperial Oil Limited for 18 years when the company’s new “Alcohol and Drug Policy” came into effect. In accordance with the policy, Entrop was required to disclose that, some years before, he had had an alcohol problem. As a consequence of this forced disclosure, Entrop was removed from his safety-sensitive job to a less desirable job. He was later reinstated but found himself subjected to more rigorous management supervision than before his disclosure. He was also required to make frequent declarations as to his sobriety in order to keep his job. Entrop filed a complaint with the Commission alleging that he had been discriminated against on the basis of a handicap and that he had been subject to reprisal.
Result at Board of Inquiry: In a series of separate decisions, the Board made a number of rulings. The key decision was the Board’s determination that the drug-testing programs employed by Imperial Oil had the effect of discriminating against persons who were substance abusers on the basis of their handicap or perceived handicap.
Result at the Court of Appeal: The Court held that in cases of adverse affect discrimination, the unified approach and the three-step test adopted by the Supreme Court of Canada in Meiorin should be applied. The three-step test requires that:
- the rule is rationally justified;
- the rule is bona fide; and
- the standard is reasonably necessary to the accommodation of that legitimate work-related standard.
To succeed on the last step, an employer must prove that accommodation is impossible or will cause undue hardship.
The Court also confirmed that substance abuse is a handicap and thus the policy was prima facie discriminatory. The drug testing provision violated the Code because it could not accurately measure impairment. The Court held further that random alcohol testing would not satisfy the Meiorin test unless Imperial Oil took steps to accommodate those who tested positive, including less severe sanctions than dismissal and providing the necessary support to permit treatment. Finally, the Court held that the requirement of disclosure of a past abuse problem was unreasonable.
Current status: The decision was not appealed.
McKenzie Forest Products Inc. v. Tilberg
Ontario Court of Appeal Decision: April 18, 2000
The facts and history of this case were noted extensively in the Ontario Human Rights Commission Annual Report 1999 – 2000, pp 21 & 22. The Commission referred Adam Tilberg’s complaint to the Board of Inquiry but withdrew from the proceedings after mediation that resolved the public interest issues between McKenzie Forest Products and the Commission. However, Tilberg wanted his complaint to be heard by the Board of Inquiry. McKenzie sought to have the complaint dismissed. The company argued that since the Commission had withdrawn, the Board was without jurisdiction to proceed.
Result in Court of Appeal: The Court held that an individual could continue with a hearing of a complaint, even though the Commission was no longer taking part.
Current status: The Divisional Court decision was set aside and the matter was remitted back to the Board for further hearing. An application for leave to appeal to the Supreme Court of Canada was dismissed November 9, 2000.
OHRC v. Mr. A, et al. Ontario Court of Appeal Decision: November 14, 2000
Complainant A was an employee of D Ltd. B was vice-president and manager of D Ltd. He was A’s direct supervisor, and also A’s wife’s brother (i.e. A’s brother-in-law). D Ltd. was owned by C, who was also a brother of A’s wife.
A worked for D Ltd. for 26 years without incident. Just prior to the termination of his employment, his daughter told him and his wife that she had recently uncovered a memory in therapy that B had sexually abused her when she was a child. A’s wife and daughter went to confront B (A’s wife’s brother) at his home. While A had driven his wife and daughter to B’s house on that evening, he was not involved in the confrontation. On Monday, A went to work as usual, where B terminated A’s employment.
Result at Board of Inquiry: The Board of Inquiry found as a fact that A was able to keep his personal and employment situations separate from each other. The Board then concluded that, in the absence of any other explanation, A was fired because of the actions of his wife and the accusations of his daughter, and that the facts amounted to discrimination based on marital or family status.
Result at Divisional Court: The Divisional Court upheld these factual findings but said that, even though the parties were related through marriage, this case does not amount to discrimination on the basis of family or marital status.
Result on Appeal: The Court of Appeal allowed the Commission’s appeal, agreeing that the grounds “family status” and “marital status” must include the particular identity of one’s parent, child or spouse.
Current status: The respondents are seeking leave to appeal to the Supreme Court of Canada. Both sides have filed materials, and the parties are now awaiting the Court’s decision.
OHRC v. Shelter Corp.,
Divisional Court Decision: February 1, 2001
This case dealt with the legitimacy of the landlords’ use of rent-to-income ratios in assessing applications, a practice widely used. Landlords require tenant applicants to disclose their income and based on this information, decide whether or not to accept the applicants as tenants.
A longer description of the case is found in the 1998-99 Annual Report, pp. 18-19, Dawn Kearney, JL and Catarina Luis vs. Bramalea et al. Result at Board of Inquiry: The Board of Inquiry found that the landlords’ use of the rent-to-income ratios to screen tenants constituted prima facie constructive discrimination against the complainants.
The Board found that the use of such ratios was neither reasonable nor bona fide. The Board also found that landlords would not experience any undue hardship if they were to stop using the rent-to-income ratio in assessing prospective tenants. The Shelter Corporation and Creccal Investments Ltd. appealed the Board’s decision to the Divisional Court.
Result on Appeal: The Court upheld the findings of the Board of Inquiry that the landlords’ use of income criteria was a violation of the Code. However, the Court amended the Order of the Board to reflect legislative changes. The Court also held that “there is no ceiling on the amount of general damages”.
Current status: Both the complainants and the respondent landlords are seeking leave to appeal on different grounds. The two motions will be heard together.
Board of Inquiry Hearings
Metsala v. Falconbridge Ltd; Kidd Creek Division, BI-0210-99
Board of Inquiry Decision: February 15, 2001
Dawn Metsala began working as a clerk with Falconbridge Ltd. in 1972. In 1988, she was promoted to payroll clerk. In early December of 1989, Metsala asked for a transfer because of the workplace stress and was told she would have to wait for a position to become vacant. On December 11,1989, Metsala commenced sick leave and was subsequently diagnosed with reactive depression and chronic fatigue. Metsala’s long-term disability benefits were cut off on June 30, 1992.
On June 26, 1992, Metsala’s doctor completed a certificate of fitness indicating that while Metsala was not fit for her regular job, she was capable of handling a half-day of non-intense office work. From June of 1992 to the end of December in 1993, five clerical positions were filled on a contract basis. The supervisor did not consider these positions appropriate for Metsala and also did not contact her or her doctor in making these determinations.
Result at Board of Inquiry: The Board found that Metsala was treated unequally vis-à-vis other employees when she was not provided with contract work or general clerical duties from June 1992 to the end of December 1993, and then she was required to compete for the position which she ultimately received. This unequal treatment constituted a prima facie case of direct discrimination on the basis of handicap.
Falconbridge did not try to discover the true nature of Metsala’s medical condition. It did not offer her contract positions because the company held assumptions and stereotypes based on her previous illnesses. In fact, Falconbridge had no objective basis for concluding that she was incapable of fulfilling the work duties. Accordingly, the Board held that Falconbridge could not rely on the defence in the Code. Additionally, the company provided no evidence to the Board that supported its contention that it would suffer undue hardship if it accommodated Metsala. Accommodation to an employee requires more than merely investigating whether an employee could perform an existing job.
Current status: The decision of the Board of Inquiry was not appealed and the Commission is taking steps to ensure compliance with the Board order.
Anderson and O’Neill v. The YMCA of Barrie
Board of Inquiry Decision: December 6, 2000
The complainants, Ellen Anderson and Lucia O’Neill, complained that while women could become regular members of the Barrie YMCA, they could not buy premium memberships, which were available only to men. The men who belong to the premium membership category are entitled to use a separate facili-ty with many amenities not available to regular members. There was no comparable facility with similar amenities available to women.
Result at Board of Inquiry: The Board of Inquiry found that the facilities that exist at the Barrie YMCA constitute an infringement of the complainants’ rights to be free from discrimination on the basis of sex in the provision of services. The Board order requires that the Barrie YMCA build a women’s facility, comparable in size and amenities to its men’s premium membership facilities by September 1, 2001.
Current status: The Commission is currently taking steps to ensure compliance with the Board order.
Jeppesen v. Corporation of the Town of Ancaster et al.,
Board of Inquiry Decision: January 2, 2001
The complainant, Mark Jeppesen, was employed with the Ancaster Fire and Emergency Services as a part-time fire fighter in January of 1988. In 1995, Jeppesen was diagnosed with histoplasmosis, an airborne fungal disease that resulted in the loss of central vision in his left eye. In 1997, the Ancaster Fire Department twice advertised for full-time firefighter positions. One of the job requirements of the position was the ability to drive an ambulance, which requires a Class F license.
Due to his vision impairment, Jeppesen was unable to obtain the required license and asked to be accommodated by performing only fire fighting duties. The Ancaster Fire Department refused Jeppesen’s request for accommodation, and denied him a job because of his inability to obtain a Class F license.
Result at Board of Inquiry: The Board held that Jeppesen had a handicap under the Code. The Board held further that requiring all full-time firefighters to obtain a Class F license, to be able to drive an ambulance, constituted prima facie discrimination because it excludes persons with visual disabilities from becoming full-time firefighters. The Board held further that Jeppesen could have been accommodated, short of undue hardship to the Fire Department, by permitting him to perform firefighting and related duties only.
Current status: The parties settled on the question of remedy prior to the Board hearing on this issue. The decision on liability will not be appealed.