Discrimination

Argues that the decision in Tranchemontagne to import a substantive test at the prima facia stage, into human rights tribunal cases, shifts the burden onto the claimant to prove that the rule was substantively discriminatory and is inconsistent with previous Supreme Court of Canada decisions. 

Commentary on SCC case Communications, Energy and Paperworks Union of Canada Local 30 v Irving Pulp and Paper Mill, 2013 SCC 34, and compares ratio to provide an analysis on the then ongoing litigation issues in Alberta Communications, Energy and Paperworks Union Local 707 v Suncor Energy Inc, 2012 ABCA 307; union vs. non-unionized setting on pre-employment drug test and the line of addiction as deciding factor.

The article discusses the conceptual challange that addiction and mental health pose in being not immutable, pose for establishing prima facia discrimination and how courts/adjudicators have dealt with it. The article addresses the test to determine indirect discrimination and the need to include indirect discrimination to achieve substantive equality. 

Summary and analysis of decision in Stewart v Elk Valley Coal Corp, 2017 SCC 30; impact on employer's right to take proactive measures in the workplace. 

Examines the extent that Charter of Rights concepts for determining prima facia discrimination such as stereotyping, prejudice, arbitrariness apply to finding discrimination under statutory human rights codes. 

A review of the various tests of prima facia discrimination. 

Summary of Ontario Human Rights Tribunal decision in Fair v Hamilton-Wentworth District School Board, 2012. Author notes the remedial order may seem surprising, but the large award for the employee is guided by the long period of time (almost 9 years) taken to litigate. 

Case Commentary on Stewart v Elk Valley Coal Corp, 2017 SCC 30; importance of policy drafting and construction of dismissal letters. 

Elk Valley analysis, prima facie case of descrimination was not made out, in which an employee did not disclose his cocaine use; authors provide a succinct section of 'implications for employers', in which safety, policy, and clarity (in termination letter) is highly valued within employer and employee interactions. 

Article briefly describes the facts in a seminal case on harassment and poisoned work environment. Discusses vicarious liability of the company for a manager's harassment of a deaf employee, compounded by the fact that the manager was the guiding mind of the corporation. Article notes that this is the first known civil case to apply Human Rights Code damages in addition to civil damages.