Defences to Human Rights Complaints (Alberta) PDF

# DEFENCES TO HUMAN RIGHTS COMPLAINTS ## HUMAN RIGHTS GUIDE ### Introduction - What you will find in this publication - Ameliorative programs - Checklist for determining if a standard is ameliorative - Reasonable and justifiable contraventions of the Act - Determining if a standard is reasonable...

# DEFENCES TO HUMAN RIGHTS COMPLAINTS ## HUMAN RIGHTS GUIDE ### Introduction - What you will find in this publication - Ameliorative programs - Checklist for determining if a standard is ameliorative - Reasonable and justifiable contraventions of the Act - Determining if a standard is reasonable and justifiable #### Identifying prima facie discrimination #### Applying the three-step legal test for the "reasonable and justifiable" defence #### Fulfilling the duty to accommodate #### How to assess whether a standard is reasonable and justifiable #### Justifying an existing standard #### Designing a new standard or reviewing existing standards ### Appendices - Appendix 1: Case law on reasonable and justifiable contraventions - Appendix 2: Case law on ameliorative policies, programs, and activities - Appendix 3: Act provisions regarding reasonable and justifiable discrimination - Appendix 4: Act provisions regarding ameliorative policies, programs, and activities ### Contact us ## This publication is produced by the Alberta Human Rights Commission (the Commission) It discusses the principles of human rights law and is based on decisions made by human rights panels, tribunals, and courts. These decision-makers have interpreted certain sections of the Alberta Human Rights Act (the Act) given the facts of particular cases. - Help individuals, employers, service providers, and policy-makers understand their rights and responsibilities under Alberta's human rights law. - Assist organizations and individuals in setting standards for behaviour that complies with human rights law. ### The Act protects individuals in Alberta from discrimination in certain areas based on specific grounds set out in the Act. These protected grounds include race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status, or sexual orientation. ###### Discrimination on the basis of these grounds is prohibited in these areas: - statements, publications, notices, signs, symbols, emblems, or other representations that are published, issued, or displayed before the public - goods, services, accommodation, or facilities customarily available to the public - residential or commercial tenancy - employment practices - applications and advertisements regarding employment - membership in trade unions, employers' organizations, or occupational associations ### The information in this publication was current at the time of release. If you have questions related to this publication, please contact the Commission. This publication does not provide legal advice. Should you require legal advice, please consult legal counsel. ## Introduction The Act prohibits discrimination in Alberta in specified areas and under specified grounds. For example, the Act prohibits discrimination in the area of employment under the ground of physical disability. This publication will examine circumstances where it appears that there is discrimination (referred to as prima facie discrimination), but at the same time, there is a reasonable and justifiable rationale for contravening the Act. ### What you will find in this publication: - Describes the concept of reasonable and justifiable contravention of the Act. - Examines how two major Supreme Court of Canada decisions (Meiorin and Grismer) apply to the exemption for reasonable and justifiable contraventions in section 11 of the Act. - Provides a practical step-by-step guide to determine whether a practice or rule, which on its face is discriminatory, can nevertheless be found to be reasonable and justifiable. - Discusses ameliorative programs and standards, and how they affect prima facie discrimination. - Provides contact information for the Alberta Human Rights Commission. - Includes as appendices: - A review of case law related to reasonable and justifiable contraventions of the Act. - A review of case law related to ameliorative policies, practices, and activities. - The provisions of the Act that address reasonable and justifiable standards or rules that may be exemptions from or defences to a contravention of the Act. - The provisions of the Act that address ameliorative policies, practices, and activities. ## Employment, services, and tenancy The Act protects individuals against discrimination in specific areas. ### Employment The term employment is given a “large and liberal” interpretation. The cases included in the case summaries in this publication *discuss topics such as the hiring process, employment for wages, and the role trade unions play.* The leading cases in *reasonable and justifiable defences to prima facie discrimination have dealt with discrimination in the area of employment.* ### Services The following have all been found to offer services to the public: - government services; - commercial services such as hotels and restaurants; - clubs, including sports, veterans, and ethnic groups; - volunteer organizations. *Based on human rights legislation and the common law, tribunals and courts have found some instances of prima facie discrimination in the area of services to be reasonable and justifiable. For instance, an Alberta human rights panel found in the Mattern case that a family-oriented campground’s exclusion of a group of single male campers was reasonable and justifiable under section 11.* > *In addition, the Act will not apply to services if they are not customarily available to the public.* For more information on services "customarily available to the public", see the Commission's publication Human Rights in the Hospitality Industry. ### Tenancy The area of tenancy includes *occupying a rental commercial unit or self-contained dwelling unit.* There are some circumstances where landlords committing prima facie discrimination may be able to defend their actions or policies as being reasonable or justifiable. > *For example, it may ultimately be found reasonable under the Act if a landlord sets economic criteria and asks for references, thereby effectively excluding, for example, individuals who are unable to pay their rent.* In determining if a landlord's *prima facie discriminatory standards are reasonable and justifiable, tribunals and courts now rely on the Meiorin and Grismer tests, looking for the elements that constitute a bona fide reasonable qualification (discussed below)-see, for example, the Ganser case summary in Appendix 1.* ## Ameliorative programs ###### Section 10.1 of the Act says that it is not a contravention of the Act to plan, advertise, adopt, or implement a policy, program, or activity, as long as the objective of the program is to improve the conditions of disadvantaged persons, or classes of disadvantaged persons, including those who are disadvantaged based on the protected grounds listed in the Act The Act and the courts have not yet established a clear definition of *“disadvantaged person.”* The existing cases have found individuals from the following groups to be disadvantaged in some circumstances: - Indigenous persons, - females, - transgender persons, - young persons, - and persons with disabilities. To be covered under section 10.1, the policy, program, or activity must achieve or be reasonably likely to achieve that objective. ### These programs are called ameliorative programs and they are an exception to the prohibition against discrimination. ###### Before the introduction of section 10.1, ameliorative programs would have likely otherwise been found to be defences or exemptions under section 11 of the Act, if they were reasonable and justifiable in the circumstances. However, the new ameliorative program provision sets out specific requirements for the program to be accepted as ameliorative (that is, the program achieving or being reasonably likely to achieve its objective). > *Ameliorative programs are also covered under section 15(2) of the Canadian Charter of Rights and Freedoms (Charter), which supports ameliorative programs created by the government to improve the condition of disadvantaged persons. To understand what this means for people creating such a program, see the following example of case law based on the Charter. > *In R v Kapp, a group of non-Indigenous commercial fishers challenged a program designed by the federal government that granted an exclusive fishing licence for the Fraser River to three First Nations groups in the region. Because the commercial fishers were excluded from the program, they argued that their section 15(1) equality rights had been violated-in other words, they had been discriminated against because they were not a part of the First Nations groups benefiting from the program. The Supreme Court of Canada stated that as long as it could be proven that a program targeted a disadvantaged group, and that the program had been designed to improve the conditions of this group, it would not violate anyone's equality rights.* One difference between section 10.1 of the Act and section 15(2) of the Charter is that section 10.1 of the Act requires that the ameliorative program in question achieves or is reasonably likely to achieve its ameliorative objective. ###### While section 15(2) does not address the effectiveness of such a program, the Act requires that such a program be reasonably effective at improving the conditions of disadvantaged persons in order for it not to be found discriminatory. ## Checklist for determining if a standard is ameliorative Once prima facie discrimination is established (as in, if there will be enough evidence provided to show the discrimination occurred, it will be presumed to be discrimination until proven otherwise. For more on prima facie discrimination, see below), the person defending the policy, program, or activity, may argue that it is ameliorative, and therefore, not in contravention of the law. ###### At the Commission investigation stage, as well as after (that is, in matters before the Tribunal and/or court), the person or organization defending the policy, program, or activity will need to show that: 1. It was designed with the objective to improve the conditions of a certain group of persons 2. The group of people are disadvantaged, including whether they are disadvantaged based on one of the grounds under the Act 3. It achieves or is reasonably likely to achieve that ameliorative objective ## Reasonable and justifiable contraventions of the Act In addition to the provisions regarding ameliorative programs, the Act sets out specific defences to prima facie discrimination in certain areas. ###### Section 11 says that it will not be a contravention of the Act if the alleged contravention is shown to be “reasonable and justifiable in the circumstances.” > These sections of the Act are called defences, because they allow any respondent to a human rights complaint to argue that their prima facie discriminatory standards or policies are not contravening the Act. In human rights statutes across Canada, a variety of terms describe the “reasonable and justifiable” exemption. - In employment practices, a reasonable and justifiable practice that would otherwise be discriminatory is referred to as a bona fide occupational requirement or qualification—a “BFOR” or “BFOQ.” - In the areas of services customarily available to the public and tenancy, such a practice is called a bona fide reasonable justification or qualification. ###### Section 7(2) says that the inclusion of age and marital status in section 7 should not affect the operation of a bona fide (“good faith”) retirement or pension plan, or a group or employee insurance plan. Section 7(3) allows an employer to impose a prima facie discriminatory rule or standard if the reason is a bona fide occupational requirement, and section 8(2) allows the same exemption for employment practices, which would include advertising and interviewing. These provisions apply only to section 7 and section 8, respectively. The Supreme Court of Canada has, over the years, established a comprehensive set of requirements that employers, service providers, and landlords must meet in order to show that, although a practice may be seen as prima facie discriminatory, it is reasonable and justifiable in the circumstances. Many of the Supreme Court of Canada cases are in the context of the Charter, which only covers actions taken by the government. ###### Section 1 of the Charter allows the limitation of a right only when "demonstrably justified in a free and democratic society.” ###### The impact of section 1 of the Charter was considered in Oakes, a 1986 criminal case, where the Supreme Court of Canada balanced the rights of the individual against the government’s needs in dealing with criminal behaviour. In 1998, the Supreme Court of Canada applied Oakes in considering the effect of the Alberta human rights legislation on the University of Alberta’s mandatory retirement policy. Applying the logic in Oakes, the Court found the policy reasonable and justifiable. Courts and human rights tribunals have found that the process of accommodation is an important factor in determining whether a standard or policy is reasonable and justifiable. Accommodation may involve making changes to a job or service in order to make it accessible to people who, because of a protected ground such as gender identity or disability, would otherwise be excluded. > *There is information on the duty to accommodate below.* ## Determining if a standard is reasonable and justifiable Human rights law in Canada requires employers, service providers, and landlords to search for non-discriminatory ways to meet their business objectives, while recognizing that, in some circumstances, it will be reasonable and justifiable to impose standards that initially appear to discriminate. The “reasonable and justifiable" defence to prima facie discrimination can only be successful if a respondent shows that serious attempts or considerations were given to accommodate a complainant facing the respondent's prima facie discriminatory standard. ### Identifying prima facie discrimination First, the complainant must establish that there has been prima facie discrimination. The Moore case found that *a complainant must show the following to demonstrate prima facie discrimination:* 1. The complainant has a protected characteristic under human rights law 2. The complainant suffered an adverse impact 3. The protected characteristic was a factor in that adverse impact > *For instance, in Mortland and Van Rootselaar (see Appendix 1) the Tribunal Chair first found that* the complainants had a characteristic protected under the Act-age. Second, it was found that* the complainants had been terminated, which is an adverse impact*. Third, the complainant's age was a factor in the termination of employment because of *a mandatory retirement policy for bus drivers who were 65 years old*. The burden then shifted to the respondent school division to demonstrate that there was a defence for the prima facie discrimination. ## Applying the three-step legal test for the “reasonable and justifiable” defence Once it is established that a standard results in prima facie discrimination, the standard is then examined to see if the prima facie discrimination is reasonable and justifiable. This examination involves a three-step test established by the Supreme Court of Canada in the 1999 Meiorin case, which involved the area of employment. For cases involving services, the test is found in the 1999 Grismer case. ###### In the Meiorin case, a forest firefighter who had successfully performed her job for several years failed the aerobic portion of a new employee fitness test and was consequently laid off. The fitness test had been developed for the employer by a team of university researchers in response to a coroner’s inquest report that recommended that the employer, for safety reasons, only assign physically fit employees to firefighting jobs. The complainant argued that the employer and the researchers who devised the aerobic test had not considered differences between male and female test subjects or ways to accommodate such differences. > *The Supreme Court of Canada established a test with three steps, all of which must be met to show that a prima facie discriminatory standard in employment is reasonable and justifiable. Specifically, the employer must show:* 1. That a workplace standard is rationally connected to the functions of the job performed 2. That the standard was established honestly and in the good-faith belief that it was necessary to fulfill a legitimate work-related objective 3. That the standard itself is reasonably necessary to accomplish the work-related goal or purpose. In demonstrating if the standard is reasonably necessary, the employer must show that they have accommodated the employee to the point of undue hardship > *In Meiorin, the Court found that even though the employer’s standard was based on safety concerns (step 1)* and established in good faith (step 2), the employer had failed to show the requirement was reasonably necessary (step 3) because it could not be shown that passing the new aerobic test was reasonably necessary to be a safe and efficient forest firefighter. The Court did not provide suggestions for accommodations that the employer might have considered. However, the Court made it clear that a standard is not reasonably necessary if the employer has not fully considered alternative accommodations that might allow the affected individual to fill the position. ###### Shortly thereafter, the Supreme Court of Canada applied the Meiorin three-step test in Grismer, a case involving services to the public. > *The B.C. Superintendent of Motor Vehicles had revoked Terry Grismer’s driver’s licence because of *Grismer’s inability, as a result of physical disability, to meet a vision standard. > *The standard was unconditional, with no possibility of individual assessment for actual fitness to drive. The Court found that without causing the Motor Vehicles department undue hardship,* Grismer could have been tested individually for his fitness to drive. By not doing so, the superintendent failed to accommodate him to the point of undue hardship. > *In Grismer, the Meiorin test was modified to account for the different relationship between a customer and service provider. To prove that a standard was reasonable and justifiable, the respondent service provider must demonstrate that the standard:* 1. Was adopted for a purpose that is rationally connected to the function being performed 2. Was established in an honest and good-faith belief that it was necessary to fulfill a legitimate purpose or goal 3. Was reasonably necessary to accomplish that purpose or goal, including that the respondent could not accommodate the complainant without incurring undue hardship. ## Fulfilling the duty to accommodate The duty to accommodate is a responsibility of the employer, service provider, or landlord to adjust the conditions of employment or service in order to address any prima facie discrimination. > *The person who needs accommodation must participate in the accommodation process, cooperate with the employer,* service provider, or landlord, *and accept reasonable accommodation efforts.* In all situations where there is a duty to accommodate, the employer, service provide, or landlord must provide accommodation to the point of undue hardship. One factor in the analysis of what constitutes undue hardship is the size of the organization, because a larger company is better able to apply additional resources before reaching the point of undue hardship than is a smaller company. > *The duty to accommodate has not been fulfilled by having one rule for all employees or clients; for example, *one change in policy may not effectively accommodate every individual*. **Duty to accommodate is a process of exploring the individual needs of a particular person and making an individual assessment**. The Supreme Court of Canada has found that the factors involved will depend on the circumstances of each case. ### Undue hardship occurs if accommodation would create overly onerous (burdensome) conditions for an employer, service provider, or landlord; for example, intolerable financial costs or serious disruption to business. An employer, service provider, or landlord must make considerable effort to find an appropriate accommodation for an employee, client, or tenant. > Some hardship may be necessary in making an accommodation; only when there is “undue" hardship can the employer, service provider, or landlord claim that they have tried all the accommodations available. For more information about accommodation and undue hardship, please see the Commission's publications Duty to accommodate and Duty to accommodate students with disabilities in post-secondary educational institutions. ## How to assess whether a standard is reasonable and justifiable Employers, service providers, and landlords must meet the requirements set out in Meiorin or Grismer to prove that a standard is reasonable and justifiable. > *In the ordinary course of business, an organization will have several opportunities to assess whether an employment or business standard is discriminatory. For instance:* - When employees or clients notify the organization that a standard has a discriminatory impact on them, or - When a new business objective is established and a standard is created to meet the new objective. ## Justifying an existing standard The organization or employer must justify a standard by proving that it is a bona fide occupational requirement. > *The following considerations, taken from the Meiorin case (at page 65), may be used throughout this analysis:* - Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard? - If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented? - Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established? - Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose? - Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies? - Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? ## Designing a new standard or reviewing existing standards Organizations may make their policies stronger by examining new and existing standards for potential discrimination. The following checklist will assist in that process and help organizations make a record of the reasoning behind establishing a particular standard. 1. Describe the business objective that a standard is meant to address. 2. If the business objective is ameliorative, identify the group of persons it is targeting and whether they are disadvantaged, and then describe how the business standard will be effective in improving the targeted group's condition. *Ameliorative standards that meet the objectives of section 10.1 of the Act are protected.* 3. Describe the importance of the business objective in meeting the organization's mission or a particular goal. 4. Generate a list of acceptable options for meeting the business objective. *Choose a standard, if one is not already in place, that meets this business objective.* 5. Describe the process used in choosing the standard. *Describe why the standard is reasonably necessary to meet the legitimate business objective.* 6. Review whether the standard might cause any obvious discriminatory impacts on particular groups of people. *Assess if there are other methods to achieve the business objective that do not cause discrimination. Choose the* standard that causes the least discrimination or no discrimination. 7. Give some thought to ways in which the organization can accommodate individuals who may experience discrimination because of the standard. *How might the organization fulfill its duty to accommodate? Recognize that the issue of whether accommodating a specific individual will cause undue hardship on the organization can only be assessed when the full situation of the specific individual is known.* > *The following appendices provide additional resources for determining whether prima facie discrimination is reasonable and justifiable, and further reading on ameliorative practices.* ## Appendix 1: Case law on reasonable and justifiable contraventions Human rights case law is constantly evolving based on issues that come before the courts and human rights tribunals. The following legal cases establish important legal principles involving the concepts of reasonable and justifiable contraventions of the Act, and duty to accommodate. The cases chosen include Supreme Court of Canada decisions, relevant Alberta cases, and major decisions from other jurisdictions. ###### Tribunal and court decisions are available online through the Canadian Legal Information Institute (CanLII) website at canlii.org. Alberta Human Rights Commission tribunal decisions can be found at canlii.org/en/ab/abhrc. The cases below reflect the major trends in the development of the law related to reasonable and justifiable defences to prima facie discrimination. Most of the case law in this area has developed in response to employment standards that have been deemed prima facie discriminatory. The bold introductory phrases at the beginning of each summary highlight the major concepts discussed in the court or tribunal decision. > Note: In 1996, the Individual's Rights Protection Act became the Human Rights, Citizenship and Multiculturalism Act. In October 2009, the Human Rights, Citizenship and Multiculturalism Act (HRCM Act) was amended and renamed the Alberta Human Rights Act (Act). In these case summaries, the historically accurate name of the act is referenced. ### The Charter background #### R v Oakes, [1986] 1 SCR 103 (Supreme Court of Canada) ###### *Charter s 1-standard for determining "reasonable and demonstrably justified" limits to rights* > In Oakes, a criminal defendant challenged part of the Narcotics Control Act, under the Charter of Rights and Freedoms. Looking at section 1 of the Charter, the Supreme Court of Canada considered when the limitation of a right is “demonstrably justified in a free and democratic society.” The Court found that any measure that limits a guaranteed right must involve concerns that are "pressing and substantial," and that the limitation must be proportional. In other words, the limitation must be rationally connected to its objectives, it must impair the right as little as possible, and the more severe the measure, the more serious the objectives of the limitation must be. ### Landmark cases #### Meiorin: Establishing a three-step test for accommodation > *In this landmark 1999 decision, the Supreme Court of Canada revisited the entire issue of discrimination in employment and the duty to accommodate.* In the Meiorin case, a forest firefighter who had successfully performed her job for several years failed the aerobic portion of a new employee fitness test, and was laid off. The aerobic test had been developed for the employer by a team of university researchers in response to a coroner's inquest report that recommended that the employer, for safety reasons, only assign physically fit employees to firefighting jobs. In its decision, the Court erased the distinction between direct and indirect discrimination, which had led to two interpretations of the BFOR concept and two approaches to accommodation. > *Instead, the Court established a single three-step test, where the employer must demonstrate that:* 1. A workplace standard or goal is rationally connected to the performance of the job 2. The standard was established honestly and in the good-faith belief that it was necessary to fulfill a legitimate work-related objective 3. The standard itself is reasonably necessary to accomplish the goal or purpose >*The SCC found that even though the employer’s standard was based on scientific evidence, it had failed to show the fitness requirement was reasonably necessary.* #### Grismer: Applying the Meiorin three-step test to public services > *Shortly after the Meiorin decision, the Court applied the Meiorin three-step test to a services case in Grismer*. Terry Grismer’s driver’s licence had been revoked by the Superintendent of Motor Vehicles because of his inability, as a result of physical disability, to meet a minimum field-of-vision standard. The standard was unconditional, with no possibility of individual assessment for actual fitness to drive. The Court found that the superintendent had failed to demonstrate that the standard had included every possible accommodation, in this case, individualized testing, up to the point of undue hardship. The Court also increased the burden for demonstrating undue hardship by finding that the superintendent would have had to show serious risk of danger, rather than only sufficient risk, and that the superintendent had a duty to consider every possible accommodation. ### Cases in which a contravention of the Act was found to be reasonable and justifiable #### Dickason v University of Alberta, [1992] 2 SCR 1103 (Supreme Court of Canada) ###### *University professor given mandatory retirement* > The Supreme Court of Canada found that the mandatory retirement of a university professor was "reasonable and justifiable” under section 11.1 of the Alberta Individual's Rights Protection Act. Because of the similarity of that section and section 1 of the Charter, the Court applied a test very similar to the test it had used in Oakes. The Court found that in regard to the question of proportionality and in light of the employer’s personnel needs, no practical alternative to mandatory retirement was available. The Court also found that the collective agreement’s acceptance of mandatory retirement supported the policy’s reasonableness. > Note: In light of more recent legal developments, it is quite unlikely that mandatory retirement, > a contravention based on age discrimination, could easily be justified. In most Canadian > provinces, mandatory retirement is either prohibited entirely or permitted only if it is > based on a bona fide retirement or pension plan, or as a bona fide occupational > requirement. #### Co-operators General Insurance Co v Alberta Human Rights Commission, 1993 ABCA 305 (Alberta Court of Appeal) ###### *Insurance rate-setting a reasonable and justifiable practice evidenced by standard industry practices—no practical alternative* > The Alberta Court of Appeal found that an insurance company’s rate-setting methods were prima facie discriminatory on the ground of age. However, the insurance company’s practice of charging more for certain groups was reasonable and justifiable under section 11.1 of the Individual’s Rights Protection Act because it was a sound and accepted practice, and because there was no practical alternative available that would be fair to other insured drivers. #### Newfoundland Assn of Public Employees v Newfoundland (Green Bay Health Care Centre), [1996] 2 SCR 3 (Supreme Court of Canada) ###### *Is hiring only male candidates a bona fide occupational requirement?* > The respondent, when hiring an attendant to care for elderly male patients, only considered male candidates. It then hired a man who was not a member of the bargaining unit, while a woman who was a member was turned down. The collective agreement required that there be no discrimination on the basis of gender in hiring and that union members were to be hired ahead of external candidates. The Supreme Court of Canada found that the employer’s gender requirement was a bona fide occupational qualification (BFOQ) because of the intimate functions the male hires were going to perform. It also found that the collective agreement’s non-discrimination clause did not interfere with the employer’s power to set a BFOQ, and thus did not amount to an attempt to contract outside of human rights legislation. #### Pringle v Alberta (Human Rights, Multiculturalism and Citizenship Commission), (2004), CHRR Doc 04-430, 2004 ABQB 821 (Court of Queen’s Bench of Alberta) ###### *Adoptee refused access to her birth certificate* > An Alberta human rights panel dismissed the complaint of an adoptee who had been refused access to her birth certificate, which would have identified her birth parents. The Court of Queen’s Bench applied an Oakes analysis to determine if the prima facie discrimination was reasonable and justifiable under section 11 of the HRCM Act. Given the need to protect the privacy of parents placing children for adoption, the Court found that denying adoptees access to their birth records only minimally impaired their rights. The standard was thus reasonable and justifiable. #### Assn of Professional Engineers and Geoscientists of Alberta v Mihaly, 2016 ABQB 61 (Court of Queen’s Bench of Alberta) ###### *Undue hardship-Employment-Foreign credentials* > The complainant was from the former Czechoslovakia where he had trained to be an engineer. He came to Canada and applied to the Association of Professional Engineers and Geoscientists of Alberta (APEGA) to become registered as a professional engineer. His application was rejected as APEGA did not view his education as the equivalent to an engineering degree in Canada. The Association required *the complainant to take additional tests in order for his application to be accepted, all of which he either failed or did not take.* The complainant filed a complaint citing discrimination on the basis of his place of origin, in contravention of section 4 of the Act. *The Tribunal found that the complainant had been discriminated against because of his place of origin and where he had acquired his education, and was unable to establish himself in his desired area of employment as a result. The Tribunal held that the Association should have matched the complainant with a mentor to help guide him through the Canadian engineering professional community, as well as offered him an individually customized assessment appropriate for his background and place of origin. On appeal to the Alberta Court of Queen’s Bench*, however, the respondent's prima facie discrimination on the basis of place of origin was found to be reasonable and justifiable. *The requirement to offer individualized testing would be too costly for the Association, and would force them to alter their standards and step outside their regulatory role.* The Court held that this would impose undue hardship on the Association. #### Cyrynowski v Alberta Human Rights Commission, 2017 ABQB 745 (Court of Queen’s Bench of Alberta) ###### *Kijiji advertisement for babysitter-parent's right to choose babysitter* > A male babysitter responded to a Kijiji advertisement for a job as an in-house babysitter. The advertisement specified that the preference was to hire an "older lady with experience." The complainant was refused an interview and went on to file a complaint with the Commission, citing discrimination on the basis of gender in contravention of section 8 of the Act. The Director of the Commission found that an employment advertisement for a babysitter in the context of a private home is a private matter between the parties, and therefore did not fall within the scope of “employment” in section 8. Furthermore, the respondent's refusal to interview the complainant was based on a bona fide occupational requirement, as parents should have the final say on who takes care of their children. Pursuant to section 26 of the Act, the respondent requested a review of the Director's decision by the Chief of the Commission and Tribunals. *The Chief said that advertising for childcare in a private home did fall within section 8 (the area of employment), but upheld the Director’s decision that gender was a bona fide occupational requirement based on the parent's right to choose who looked after her child.* The babysitter's appeal was dismissed by the Alberta Court of Queen’s Bench. ### Cases in which a contravention of the Act was not found to be reasonable and justifiable #### Miller v 409205 Alberta Ltd (panel decision) #### 409205 Alberta Ltd v Alberta (Human Rights and Citizenship Commission) (Court decision), 2002 ABQB 681 (Court of Queen’s Bench of Alberta) > A landlord had a series of disputes with a tenant whose rent was subsidized. The landlord refused to renew its participation in a subsidy program that had previously paid a portion of the tenant’s rent. Other tenants in the building were not subject to the same rent increases as the complainant. The Alberta Court of Queen’s Bench upheld the decision of an Alberta human rights panel that, *in spite of the tenant’s responsibility for much of his poor relationship with the landlord*, the rent increases and the landlord's effective cancellation of the tenant’s rent subsidy amounted to discrimination based on source of income. The Court held that no reasonable and justifiable defence applied under section 11 of the HRCM Act. #### Ganser v Rosewood Estates Condominium Corp. (No. 1), 2002 AHRC 2 (The Alberta Human Rights and Citizenship Commission) ###### *Actions based on “impressionistic” views of disability—to whom do condominium corporations owe public service?* > A condominium corporation changed its bylaws, depriving a disabled 87-year-old resident of her former parking space. Although the resident herself did not drive, family members and friends used the space frequently when they came to pick her up. *The resident filed a human rights complaint*. An Alberta human rights panel found that the condominium corporation provided a public service to tenants, and that the complaint was therefore within the panel’s jurisdiction. *The panel also found that taking away the parking space was prima facie discriminatory because it was based on “impressionistic” assumptions about disability and because, in line with the reasoning in Grismer, reasonable alternatives had not been sought. The policy was not reasonable and justifiable under section 11 of the HRCM Act because it was not based on any “sound and accepted practice," nor had any fair, practical inquiry been made into alternatives to the policy.* #### Gwinner v Alberta (Minister of Human Resources and Employment), 2002 ABQB 685; appeal dismissed 2004 ABCA 210 (Alberta Court of Appeal) ###### *Excluding people from benefits on the basis of their marital status* > *A group of complainants alleged that the Alberta Widows’ Pension Act discriminated against women who were divorced, separated, or never married by denying them benefits for which they would have been eligible had they been widows. An Alberta human rights panel dismissed the complaints on the basis that*, while the program was prima facie discriminatory, the contravention was reasonable and justifiable. However, the Alberta Court of Queen’s Bench found that the panel had applied the Meiorin test in error. In considering the respondent’s defence under section 11 of the HRCM Act, the Court followed Dickason,* applying the Oakes test. *It found that excluding those who were single or who had never married was reasonable and justifiable, but that excluding persons who were divorced or separated was not.* The Alberta Court of Appeal affirmed these findings. #### United Food and Commercial Workers, Local 401 v Alberta (Human Rights and Citizenship Commission), (2003), 47 CHRR D/220, 2003 ABCA 246 (Alberta Court of Appeal) ###### *Excluding employees on disability leave from receiving benefits that other employees had received* > *Citing difficult economic circumstances,* Canada Safeway negotiated a "buyout" of about 3,500 active employees, all of whom agreed to take lump-sum payments in return for either resigning or taking a pay cut. However, 15 employees had failed to accumulate enough hours to benefit from the buyout because they were on disability leave and could only go back to work at the new, reduced salaries. An Alberta human rights panel found discrimination, a decision upheld by the Court of Queen’s Bench, which found *the union equally liable with the employer.* The Court of Appeal upheld those decisions, using the Meiorin test to decide whether there was a reasonable and justifiable contravention under section 11.1 of the Individual’s Rights Protection Act. Including the employees with disabilities in the buyout would have cost the company very little, and *the company and the union had both failed to accommodate them.* #### Alberta (Human Rights and Citizenship Commission) v Federated Co-operatives Limited, 2005 ABQB 587 (Alberta Court of Appeal) ###### *Employee’s responsibility to participate in accommodation—Employer requesting further medical information* > *As a result of his bipolar disorder, an employee had trouble driving and relating to customers, both of which were significant responsibilities in his job.* An Alberta human rights panel found that the employer had made some tentative attempts at accommodation. However, *the employee had failed in his obligation to provide the detailed medical information the employer needed in order to