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Section II—Analysis of Program Activities by Strategic Outcome

The Tribunal’s single strategic outcome is that individuals have equal access, as determined by the Canadian Human Rights Act and the Employment Equity Act, to the opportunities that exist in Canadian society through the fair and equitable adjudication of human rights and employment equity cases that are brought before the Canadian Human Rights Tribunal. Its ongoing program priority is to carry on business as usual, i.e., to dispose of the complaints brought before it by means of a fair and orderly process of inquiry, including mediated settlement if possible, public hearings and written decisions.

Getting Results

As the custodian of a vital piece of Canada’s human rights protection machinery, the Tribunal benefits Canadians by increasing the thread count in the fabric of Canadian society. In providing a forum where human rights complaints can be scrutinized and resolved and by articulating findings and observations on important issues of discrimination in the form of formal decisions, the Tribunal gives effect to the principles enshrined in federal human rights legislation. The proximate result of the Tribunal’s program is that complainants can air their grievances and achieve closure in a respectful, impartial forum. In the longer term, Tribunal decisions create meaningful legal precedents for use by employers, service providers and Canadians at large.

Although the Tribunal (including its predecessors) has been part of the human rights landscape in Canada for decades, Tribunal decisions have not always enjoyed the authority they do today. Until recently, allegations of institutional bias and lack of independence undermined the effectiveness of Canada’s human rights enforcement machinery, and requests for judicial reviews of Tribunal decisions and rulings were commonplace. For example, all eight of the Tribunal’s written decisions issued in 1998 were challenged. Statutory changes in 1998 raised the stature and perceived independence of the Tribunal, resulting in fewer challenges to Tribunal decisions and greater approbation by the Federal Court when Tribunal decisions are appealed. Ultimately, this acceptance benefits both complainants and respondents, since Tribunal decisions are increasingly perceived as definitive and the parties can get on with their lives. Written decisions become part of the public record. As well as specifying whether a respondent’s actions have run afoul of the Act, Tribunal decisions provide guidance, where appropriate, on how to bring policies and practices into line with the legislation to prevent discrimination in future. Such explanations benefit not only the parties involved, but also all employers and service providers and their employees and clients. It is therefore an expected (and sought after) result of Tribunal decisions that they will be accepted by the parties involved and, if judicially challenged, upheld by the reviewing court. Such acceptance benefits all of society since it expedites justice and reduces the cost of protracted appeals.

That’s why the Tribunal monitors the number of judicial reviews of its decisions and the proportions of these that uphold or overturn Tribunal decisions.

As the table below illustrates, a majority of the Tribunal’s 58 decisions issued in the past four years have remained unchallenged.

Judicial Reviews

	2004	2005	2006	2007	TOTAL
Cases referred	139	99	70	82	390
Decisions rendered	14	11	13	20	58
Upheld	6	1	0	0	7
Overturned	0	0	2	0	2
Judicial review withdrawn or struck for delay	1	0	1	0	2
Judicial review pending	0	1	1	7	8
Total challenges	7	2	4	7	20

What has been a challenge in recent years is the effort required to provide speedy justice to complainants. The complexity of cases, the vigorous advocacy at inquiries and the amount of time that Tribunal members must spend resolving pre-hearing issues continue to test the Tribunal’s resourcefulness.

The Tribunal is therefore pleased to report that, despite its uncharacteristically heavy caseload over the past four years, it has avoided developing a case backlog. This success is largely attributable to an efficient case management process introduced in 2005 and the success of mediations. Still, at the end of 2007,³ 98 case files remained active, compared with 100 a year earlier and 147 in 2005.

Despite these challenges, the Tribunal has remained steadfast in its commitment to striving for the earliest possible disposition of cases. The Tribunal expects that, by helping the parties determine with greater precision which issues must be decided at hearing, active case management will continue to yield major process improvements by reducing the number of issues to be addressed at hearing.

In the meantime, the Tribunal has enjoyed continuing success with its mediation program. In 2007–08, 71 percent⁴ of Tribunal-mediated complaints were settled to the satisfaction of the parties, compared with 64 percent of mediated cases referred during 2003 and 2004, 87 percent of mediated cases from 2005, and 88 percent of mediated cases from 2006. Combined with the business process improvements outlined above, the growing success of the Tribunal’s mediation service has enabled the Tribunal to process larger numbers of complaints without the need for more financial resources.

The Effect of Recent Tribunal Decisions on Canadians

As a key mechanism of human rights protection in Canada, the Tribunal gives effect to the Canadian ideals of pluralism, equity, diversity and social inclusion.

In 2007–08, the Tribunal issued 19 final decisions determining whether the CHRA was infringed in a particular instance (subject to rights of judicial review before the Federal Court). Although these decisions have a direct and immediate impact on the parties involved, they also have more far-reaching repercussions, giving concrete and tangible meaning to an abstract set of legal norms. Although the CHRA prohibits discriminatory practices and exempts certain discriminatory practices from remedy, it does not provide examples. Nor does the Act define the term discrimination. Tribunal decisions are therefore the primary vehicle through which Canadians see the impact of the legislation and learn the extent of their rights and obligations under the Act.

The following summaries of Tribunal decisions from 2007–08 illustrate the kinds of complaints brought before the Tribunal and how such cases affect all Canadians. Summaries of these and other Tribunal decisions rendered in 2007 can be found in the Tribunal’s 2007 annual report.

Upon her return from maternity leave, a Bell Canada employee requested a modified schedule to enable her to breastfeed her baby, who had been born with a serious health condition and needed prolonged breastfeeding to strengthen his immune system. In her complaint she alleged that her employer’s decision to deny her request was discrimination on the basis of sex and family status in violation of the CHRA.

In its decision, the Tribunal found that Bell Canada had treated the complainant’s request for accommodation as a medical issue. Requesting medical notes and reports in support of her requests and periodic updates from the complainant’s physician to support the continuation of the request of accommodation, Bell Canada had characterized the complainant as a disabled person. The Tribunal also found that by discouraging the complainant’s request for daily unpaid leave to nurse her child, Bell Canada subjected the complainant to adverse differential treatment on the basis of her sex within the meaning of section 7 of the Act. The Tribunal further found that Bell Canada had no policy on accommodating breastfeeding, and that it had failed to prove that the complainant’s early departure, up to one hour before the regular end of her shift to nurse her child, would have caused the organization undue hardship.

The Tribunal ordered Bell Canada to prevent such discrimination from recurring. Bell Canada was ordered to establish policies relating to employee requests for breastfeedingrelated accommodation that were consistent with the findings in its decision. The complainant was awarded compensation for pain and suffering and compensation for Bell Canada’s reckless conduct. She was also compensated for lost income for the wages she Section II—Analysis of Program Activities by Strategic Outcome 13 failed to earn during her visits to her physician’s office to obtain the requested medical notes and reports.

Results for Canadians

While significant attention has been given in human rights jurisprudence to a woman’s right to breastfeed in a public place, the Cole decision marks the first opportunity the Tribunal has had to apply the workplace accommodation principles in the CHRA to a female employee’s decision to nurse her child. A noteworthy aspect of this decision is the Tribunal’s exploration of the distinction between the physiological aspects of gender (in this instance, of pregnancy and maternity) and the physiological aspects of disability. The fact that accommodating maternity in the workplace has a physiological rationale does not require that maternity be “medicalized” or treated as a disability. Disability accommodation and gender accommodation remain conceptually different from one another. This analysis will serve as a useful foundation for future discussion.

Mr. Knight alleged that the respondent, the Société de transport de l’Outaouais (STO), discriminated against him because of a disability in relation to employment, contrary to section 7 of the CHRA.

Mr. Knight had earlier been involved in a workplace accident that caused him to injure his right hand. Following the accident, the complainant received income replacement benefits from the Commission de la Santé et de la Sécurité au Travail (CSST) and was assessed by a doctor who determined that he had permanent functional limitations.

When the complainant applied for a position with the respondent, he was asked to undergo a medical exam. When the doctor learned of the complainant’s disability, he told him that his hiring would be delayed until he could review the CSST’s file. After the review, the doctor determined that the complainant did not meet the requirements for the position. The STO later informed him that he had not been hired.

In reviewing the evidence, the Tribunal found that, although the respondent had considered accommodating the complainant, it had erroneously concluded that doing so would cause it undue hardship. For example, the possibility of offering the complainant a driver’s job was never properly examined and, given the circumstances, too much weight was attached to the effect of accommodation on employee morale and the collective agreement. Moreover, the STO relied on the CSST’s determination of the complainant’s work restrictions, despite the fact that the STO had made its own, more positive observations of the complainant’s abilities, and had been provided with a more recent and more positive prognosis from the complainant’s physician. For those reasons, the Tribunal substantiated the complainant’s allegations and ordered the STO to take steps to integrate him into the workplace and to compensate him for lost wages.

Results for Canadians

This decision examines the interplay between the regime established by Parliament to accommodate disabled persons and provincial statutory regimes that deal with compensation for workplace injury. In both schemes, employers have a duty to accommodate employees who become disabled due to workplace injury. However, a decision by the provincial authority as to a disabled employee’s work restrictions is not always binding on an employer that must discharge obligations set out in the CHRA. The Knight decision contributes tangibly to the dialogue between these two regulatory regimes, which straddles the constitutional division of powers.

The complainants, George Vilven and Robert Neil Kelly, had worked for the respondent, Air Canada, since 1986 and 1972, respectively. They alleged that Air Canada discriminated against them on the basis of age, contrary to sections 7 and 10 of the CHRA, by requiring them to retire at age 60. Mr. Kelly also filed a complaint against the Air Canada Pilots Association (ACPA), alleging a contravention of sections 9 and 10 of the CHRA. Finally, the Fly Past 60 Coalition challenged the constitutionality of section 15(1)(c) of the CHRA, claiming it violated section 15(1) of the Canadian Charter of Rights and Freedoms.

The Tribunal found that the termination of the complainants’ employment with Air Canada on the basis of the mandatory retirement policy established a prima facie case of discrimination under section 7 of the Act. Furthermore, the sole fact that ACPA had agreed to this policy through the collective agreement and pension plan established a prima facie case of discrimination against the union respondent.

However, under section 15(1)(c) of the CHRA, if the respondents could prove that age 60 was the normal age of retirement for similar positions, the case against them would fall. In this situation, the onus to prove that the normal age of retirement was 60 rested with Air Canada since it had greater access to the relevant information and superior financial resources. In comparing Air Canada with other major international airlines, the data revealed that age 60 was the normal age of retirement for the majority of positions in other major airline companies. Moreover, age 60 had been designated as retirement age by the industry in an international standards document. The result was that Air Canada’s mandatory retirement policy could not be viewed as a discriminatory practice under the CHRA; it imposed the “normal age of retirement” for similar positions.

With regard to the constitutional challenge put forward to the “normal age of retirement” defence, the Tribunal found that the mandatory retirement policy did not violate the dignity of the complainants and did not fail to recognize them as full and equal members Section II—Analysis of Program Activities by Strategic Outcome 15 of society. Thus the section 15 Charter claim failed. For all these reasons, the complaints were dismissed.

Results for Canadians

This decision contributes to the interpretation and understanding of the CHRA in a number of ways. First of all, it provides Canadians with an examination and analysis of the “normal age of retirement” exemption for the otherwise discriminatory practice of mandatory retirement. This exemption has been in the CHRA since its original enactment, but has received relatively little consideration by adjudicators. Secondly, the Vilven and Kelly decision addresses an issue of particular significance to the Canadian demographic, examining as it does the impact of an aging workforce on the organization of labour in society. Finally, the decision illustrates how the equality principles mandated by federal human rights legislation measure up against the main equality guarantee enshrined in the Canadian Charter of Rights and Freedoms.

The complainants, who were born outside Canada and who sought to acquire Canadian citizenship retroactively from birth, alleged that Citizenship and Immigration Canada had discriminated on the basis of sex when it failed to grant citizenship to their mother, who had been born outside Canada to a Canadian mother and an American father. Under the law as it stood at the time of their mother’s birth in 1955, a person born abroad could inherit Canadian citizenship only if the person’s father was Canadian.

In other words, in situations where only one parent was Canadian, the law differentiated in the transmission of Canadian citizenship depending on the gender of the Canadian parent.

Although the law was later changed to eliminate this distinction for future cases, the complainants were unsuccessful in their claim for retroactive Canadian citizenship. They alleged that the Canadian government’s refusal to acknowledge their entitlement from birth to Canadian citizenship constituted adverse differentiation on the grounds of sex in the provision of services. The Tribunal dismissed the complaint.

First, the Tribunal found that citizenship was not a “service” within the meaning of the CHRA, asserting that such a characterization would ignore the fundamental role that citizenship plays in defining the relationship between individuals and the state.

However, the Tribunal also found that (even if citizenship were a service) the complainants were not victims of discrimination within the meaning of the CHRA; the citizenship legislation that abolished differential treatment for the future—but did not 16 Canadian Human Rights Tribunal correct it for the past—did not target the complainants, but rather their mother. Yet she was not asserted to be a victim in the complaint and no order was sought for her benefit. Finally, granting the complainants the relief they sought for themselves would have entailed retroactively changing their mother’s citizenship status as of her birth; such action was never contemplated by the CHRA.

Results for Canadians

This decision represents one of the few instances where a decision maker has explored the meaning of services in the context of the CHRA and set some limits on the concept. Such guidance is useful since “services” is not defined in the Act and its meaning is harder to delineate than other terms such as “employment.” The decision also offers a thorough discussion of issues that can emerge in cases where the CHRA is invoked in regard to legal situations that pre-date its enactment. Finally, the decision provides guidance on the notion of standing in the context of the CHRA, a contribution of particular importance because the Act recognizes a potential distinction in any given case between “complainants” and “victims.”

Judicial Review of Tribunal Decisions

The majority of Tribunal decisions in fiscal year 2007–08 were not the subject of judicial review proceedings. As noted elsewhere in this report, we perceive the downward trend in judicial reviews as an indicator of a greater acceptance of the Tribunal’s interpretation of the CHRA by the parties and the reviewing courts.

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³ Case referral and processing statistics are kept on a calendar year basis only.

⁴ Several files opened late in the fiscal year are still in the early stages of inquiry. As a result, the settlement rate for cases opened in 2007-08 is expected to increase.

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