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Glossary of concepts in human rights

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Prima facie Case of Discrimination

The phrase ‘prima facie case of discrimination’ is often used in human rights cases. The Supreme Court of Canada has described the test for such a case as follows:

The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent–employer.[170]

Forms of Discrimination

Discrimination can take many forms. It can occur when a service provider adopts a rule that, on its face, discriminates against persons on the basis of family status.
Example: A restaurant reserves its dining area over looking a lake only to adults and prohibits families with children.

Discrimination can also take place through another person or other means.

Example: An apartment building's rules prohibit any noise after 11 p.m. regardless of the cause. The rule is enforced with equal vigour to evict tenants that play loud music as well as parents of a newborn that is crying. In this case the superintendent's application of the building's rules would also constitute discrimination.

Rules, policies, procedures, requirements, eligibility criteria or qualifications may appear neutral but may nonetheless amount to constructive, or “adverse effect” discrimination.

Example: An employer restricts its sick leave policy to situations where the employee, alone, is ill. This would likely have an adverse effect on parents, who are healthy themselves, but who have to attend to the needs of an ill child at certain times.

Bona Fide and Reasonable Requirements or Qualifications (BFORs or BFOQs)

Where the complainant makes out a prima facie case of discrimination because a standard or requirement has had an adverse impact based on a prohibited ground of discrimination,the respondent may avoid liability by establishing that the standard or requirement in question is a ‘BFOR’ or ‘BFOQ’.

The Supreme Court of Canada has held in that in such cases, a three-step test should be adopted to assess the standard or requirement in question. In the context of an employment case, the Court described the test as follows:

(1) The employer must show the standard is adopted for a purpose rationally connected to the performance of the job;

(2) The employer just establish it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose;

(3) The employer must show that the standard is reasonably necessary to the accomplishment of that purpose. To demonstrate this, the employer must show that it is impossible to accommodate individual employees sharing the characteristics of the complainant without imposing undue hardship upon the employer.[171]

Undue Hardship

The duty to accommodate exists up to the point of undue hardship. It is the Commission's position that the Code prescribes only three considerations in assessing whether an accommodation would cause an undue hardship:

Cost: Both the Code and the courts have set the cost standard as a high one. Costs will amount to an undue hardship if they are: quantifiable; shown to be related to the accommodation; and so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.

Outside Sources of Funding: Outside sources of funding may be available to alleviate accommodation costs. Organizations should avail themselves of such resources in order to meet their duty to accommodate and must do so before claiming undue hardship.

Health and Safety Risks: Whether a health and safety risk is sufficient to constitute an undue hardship must be evaluated using the three-step test described in this policy. The nature, probability, severity and scope of the risk must be determined based on objective, cogent evidence and not on assumptions or impressionistic evidence. It is also necessary to consider the fact that, in most things, perfect safety is not possible and that a reasonable level of safety is the goal.

[170] O.H.R.C. and O’Malley v. Simpsons-Sears. Ltd. [1985] 2 S.C.R. 526 at 558. There is current debate as to whether the approach in O'Malley is still appropriate in human rights cases in light of the more recent approach to discrimination cases set out by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), supra, note 50. Nevertheless, an approach that first asks whether the complainant has made out a "prima facie case" continues to be used by many human right tribunals.
[171] Supra, note 79

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