Unit 2 Module 3

Question 1

Examples of Duty to Accommodate

Answer 1

• Providing a special screen and software for people with visual impairment
• Allowing an employee to take time off to attend a medical appointment
• Managing an employee’s schedule in a way that balances their work and caregiving obligations
• Making wheelchair access available to people with disabilities
• Employers and service providers have an obligation to adjust rules, policies or practices to enable you to participate fully. It applies to needs that are related to the grounds of discrimination. This is called the duty to accommodate.

Question 2

Example of Undue Hardship

Answer 2

A pilot for a small airline develops a medical condition that limits his peripheral vision. Because of his condition, he is no longer allowed to fly planes. The airline has very few employees, and there are no other jobs to offer him. The employer could argue that keeping the pilot on their payroll would cause undue hardship, and that letting him go is their only option.
- Sometimes accommodation is not possible because it would cost too much, or create health or safety risks. This is known as undue hardship.

Question 3

Provincial & Territorial Human Rights Agencies

Answer 3

Provincial and territorial human rights laws share many similarities with the Canadian Human Rights Act and apply many of the same principles. They protect people from discrimination in areas such as restaurants, stores, schools, housing and most workplaces.

Alberta Human Rights Commission

British Columbia Human Rights Tribunal

B.C. Human Rights Coalition

Manitoba Human Rights Commission

New Brunswick Human Rights Commission

Newfoundland and Labrador Human Rights Commission

Northwest Territories Human Rights Commission

Nova Scotia Human Rights Commission

Nunavut Human Rights Tribunal

Ontario Human Rights Commission

(Ontario) Human Rights Tribunal of Ontario

(Ontario) Human Rights Legal Support Centre

Prince Edward Island Human Rights Commission

(Québec) Commission des droits de la personne et des droits de la jeunesse

Saskatchewan Human Rights Commission

Yukon Human Rights Commission

Question 4

Summary of privacy laws in Canada

Answer 4

There are several laws in Canada that relate to privacy rights. Enforcement of these laws is handled by various government organizations and agencies.

Several factors determine which laws apply and who oversees them. Among them:

The nature of the organization handling the personal information
Is it a federal government institution?
Is it a provincial or territorial government institution?
Is it private sector?
Is it engaged in commercial activities?
Is it a federally regulated business?
Where is the organization based?
What type of information is involved?
Does the information cross provincial or national borders?

Question 5

What is personal information?

Answer 5

Personal information is data about an “identifiable individual”. It is information that on its own or combined with other pieces of data, can identify you as an individual.

The definition of personal information differs somewhat under PIPEDA or the Privacy Act but generally, it can mean information about your:

race, national or ethnic origin,
religion,
age, marital status,
medical, education or employment history,
financial information,
DNA,
identifying numbers such as your social insurance number, or driver’s licence,
views or opinions about you as an employee.
What is generally not considered personal information can include:

Information that is not about an individual, because the connection with a person is too weak or far-removed (for example, a postal code on its own which covers a wide area with many homes)
Information about an organization such as a business.
Information that has been rendered anonymous, as long as it is not possible to link that data back to an identifiable person
Certain information about public servants such as their name, position and title
A person’s business contact information that an organization collects, uses or discloses for the sole purpose of communicating with that person in relation to their employment, business or profession.
Government information. Occasionally people contact us for access to government information. This is different from personal information. For access to government information, contact the Information Commissioner of Canada.

Question 6

Federal privacy laws and what they cover

Answer 6

Canada has two federal privacy laws that are enforced by the Office of the Privacy Commissioner of Canada:

the Privacy Act, which covers how the federal government handles personal information;
the Personal Information Protection and Electronic
Documents Act (PIPEDA), which covers how businesses handle personal information.

Question 7

The Privacy Act

Answer 7

The Privacy Act relates to a person’s right to access and correct personal information that the Government of Canada holds about them. The Act also applies to the Government’s collection, use and disclosure of personal information in the course of providing services such as:

old age security pensions
employment insurance
border security
federal policing and public safety
tax collection and refunds.

The Privacy Act only applies to federal government institutions listed in the Privacy Act Schedule of Institutions. It applies to all of the personal information that the federal government collects, uses, and discloses. This includes personal information about federal employees.

The Privacy Act does not apply to political parties and political representatives.

Question 8

What is personal information under Privacy Act?

Answer 8

The Privacy Act offers protections for personal information, which it defines as any recorded information “about an identifiable individual.”

Question 9

The Personal Information Protection and Electronic Documents Act (PIPEDA)

Answer 9

PIPEDA sets the ground rules for how private-sector organizations collect, use, and disclose personal information in the course of for-profit, commercial activities across Canada. It also applies to the personal information of employees of federally-regulated businesses such as:

banks
airlines
telecommunications companies.

Question 10

What does PIPEDA apply to?

Answer 10

PIPEDA generally applies to personal information held by private sector organizations that are not federally-regulated, and conduct business in:

Manitoba
New Brunswick
Newfoundland and Labrador
Northwest Territories
Nova Scotia
Nunavut
Ontario
Prince Edward Island
Saskatchewan
Yukon.

Federally-regulated organizations that conduct business in Canada are always subject to PIPEDA and must also apply the act to their employees’ personal information.

Question 11

What does PIPEDA not apply to?

Answer 11

PIPEDA does not apply to organizations that do not engage in commercial, for-profit activities.

Unless they are engaging in commercial activities that are not central to their mandate and involve personal information, PIPEDA does not generally apply to:

not-for-profit and charity groups
political parties and associations.
Municipalities, universities, schools, and hospitals are generally covered by provincial laws. PIPEDA may only apply in certain situations.

For example, if the organization is engaged in a commercial activity which is outside of its core activity such as, a university selling an alumni list.

Unless the personal information crosses provincial or national borders, PIPEDA does not apply to organizations that operate entirely within:

Alberta
British Columbia
Quebec.
These three provinces have general private-sector laws that have been deemed substantially similar to PIPEDA.

All businesses that operate in Canada and handle personal information that crosses provincial or national borders are subject to PIPEDA regardless of which province or territory they are based in.

Federally-regulated businesses operating in Canada are subject to PIPEDA.

Organizations in the Northwest Territories, Yukon and Nunavut are considered federally-regulated and therefore are covered by PIPEDA.

Question 12

What is personal information under PIPEDA?

Answer 12

Under PIPEDA, personal information means information about an identifiable individual.

Question 13

Provincial privacy laws

Answer 13

Every province and territory has its own laws that apply to provincial government agencies and their handling of personal information. Some provinces have private-sector privacy laws that have been deemed “substantially similar” to PIPEDA. This means that those laws apply instead of PIPEDA in some cases. These provinces are:

Alberta
British Columbia
Québec.

Question 14

The following provinces have health-related privacy laws that have been declared substantially similar to PIPEDA with respect to health information:

Answer 14

Ontario
New Brunswick
Newfoundland and Labrador
Nova Scotia
While other provinces and territories have also passed their own health privacy laws, these have not been declared substantially similar to PIPEDA. In some of those cases, PIPEDA may still apply.

Question 15

Employment related

Answer 15

Some provinces have passed privacy laws that apply to employee information. Examples include:

Alberta
British Columbia
Each province and territory in Canada has a commissioner or ombudsman responsible for overseeing provincial and territorial privacy legislation.

Question 16

Sector-specific privacy laws

Answer 16

Several federal and provincial sector-specific laws include provisions dealing with the protection of personal information.

The federal Bank Act, for example, contains provisions regulating the use and disclosure of personal financial information by federally regulated financial institutions.

Provincial laws governing credit unions typically have provisions dealing with the confidentiality of information relating to members’ transactions.

Most provinces have laws dealing with consumer credit reporting. These acts typically impose an obligation on credit reporting agencies to:

ensure the accuracy of the information
place limits on the disclosure of the information
give consumers the right to have access to, and challenge the accuracy of, the information.
There are many provincial laws that contain confidentiality provisions concerning personal information collected by professionals.

The presence of other privacy-related legislation does not always mean that PIPEDA does not apply.

Question 17

What Are Quasi-Constitutional Laws?

Answer 17

In the hierarchy of laws, quasi-constitutional laws rank somewhere above ordinary administrative law but below the Constitution.

• developed to ensure fair treatment of the public, and are called “quasi-constitutional” because, like the Constitution, they embody important—even fundamental—rights and freedoms, but, unlike the Constitution, they do not always override other laws that conflict with them
• often embody values recognized throughout the world, not just in Canada.
• similar to both the Constitution and administrative law. Like these laws,
• intended to prevent abusive behaviour,
• uphold human dignity and autonomy, and ensure fair treatment of individuals.

However, unlike these laws, quasi-constitutional laws often regulate the conduct of individuals and businesses as well as that of government.

Question 18

quasi-constitutional laws

Answer 18

Some common law principles, such as solicitor-client privilege (the right of a lawyer’s client to have all communications between the client and the lawyer kept confidential), are considered quasi-constitutional.
Other quasi-constitutional laws are statutes. The most important laws in the second category are probably the human rights codes passed by the federal government and each of the provinces and territories.
Other quasi-constitutional laws include the Canadian Bill of Rights (not to be confused with the Canadian Charter of Rights and Freedoms ), freedom-of-information laws, privacy laws, and laws guaranteeing language rights.

Question 19

T he recognition of a law as “quasi-constitutional” has three effects on its interpretation:

Answer 19

1. The protected rights receive a broad interpretation, while exceptions and defences are narrowly construed.
2. Although quasi-constitutional statutes do not automatically prevail over other statutes, some quasi-constitutional statutes explicitly state that they prevail over other statutes in the event that there is a conflict between them.
   There is also a rule of statutory interpretation such that, if there are two ways of interpreting a statute, one of which is consistent with upholding the rights granted by a quasi-constitutional statute and one of which is not, the consistent interpretation will prevail.
   In cases of conflict or inconsistency of a quasi-constitutional statute with other types of legislation, the fact that the other legislation was enacted first will not necessarily mean that it will prevail over the quasi-constitutional statute.
3. When quasi-constitutional laws are interpreted, the key provisions are to be adapted not only to changing social conditions but also to evolving conceptions of the quasi-constitutional right.

Question 20

Human rights codes

Answer 20

typically prohibit discrimination or harassment based on grounds such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed or religion, sex, sexual orientation, age, marital status, family status, disability (formerly called “handicap”), or the receipt of public assistance. Human rights laws exist in provinces and states through North America and Europe.

Question 21

Pay equity is

Answer 21

the right of women to receive the same pay as men for work of equal value; human rights codes and pay equity statutes often require employers to develop and implement plans to achieve pay equity.

Question 22

Employment equity refers to

Answer 22

the elimination of the underrepresentation of individuals in designated groups—such as women, Aboriginals, members of visible minority groups, and people with disabilities—in the workplace.
Human rights commissions may require employers to develop and implement employment equity plans to identify and eliminate barriers to the hiring and promotion of individuals in designated groups that result from the employer’s employment systems, policies, and practices. They may also require employers to take positive steps to increase the representation of such groups in the workplace.

Question 23

Circumstances Where Discrimination Is Prohibited

Answer 23

• a school run by a religious society may be permitted to accept only students who follow that society’s religion and hire only teachers who are members of the religion.
• ## Provisions against discrimination in employment generally prohibit a prospective employer from refusing to hire an applicant on grounds such as the applicant’s race, age, or sexual orientation.

Question 24

Intentional and Unintentional Discrimination: The Simpsons-Sears Approach

Answer 24

Ontario Human Rights Commission v Simpsons-Sears ,
the Court recognized two types of discrimination: direct discrimination, where a standard is discriminatory on its face, and constructive discrimination or adverse effect discrimination, where an individual or organization imposes an apparently neutral requirement that disproportionately affects a particular individual or group in a negative way.
Simpsons-Sears ruling, the Court imposed different requirements on employers depending on whether a discriminatory standard or practice constituted direct discrimination or adverse effect discrimination.

Question 25

INTENTIONAL (DIRECT) DISCRIMINATION: THE BONA FIDE OCCUPATIONAL REQUIREMENT TEST

Answer 25

A bona fide occupational requirement (usually referred to as a “BFOR”) is a requirement that would be essential for anyone to do a particular job successfully. Once a prima facie case of direct discrimination has been established, the employer has the legal onus to establish that “the requirement, qualification or factor is reasonable and bona fide in the circumstances” (Ontario Human Rights Code , s 11(1)(a)).

• requirement to be a BFOR, it must be necessary for the successful performance of the particular job.
• although it is illegal to discriminate on the basis of disability, a trucking company would not be required to hire a blind driver, since eyesight is a necessary requirement for the job. However, a company could not refuse to hire an individual who was blind for a receptionist position on the basis of this disability, since sight is not necessary to do this job.

Question 26

UNINTENTIONAL (INDIRECT OR ADVERSE EFFECT) DISCRIMINATION: THE DUTY OF REASONABLE ACCOMMODATION

Answer 26

• An employer’s refusal to hire a person because he or she is blind is direct discrimination
• an employer’s refusal to hire a sales clerk because he has a beard is constructive or adverse effect discrimination The employer does not intend to discriminate on the basis of the applicant’s religion, but prohibiting facial hair has that effect.

.

Question 27

the doctrine of accommodation or the duty of reasonable accommodation provides that

Answer 27

where a seemingly neutral qualification or requirement (such as being clean-shaven) has a disproportionately negative impact on a group protected by human rights legislation, the onus is on the employer either to find a way to accommodate the special needs of the affected candidates or employees—including taking all measures that can be taken without causing undue hardship to the business—or to demonstrate that it is unable to reasonably accommodate the employee’s needs without undue hardship to the business.

Question 28

The duty to accommodate often arises

Answer 28

where an employee suffers an injury or illness or develops an addiction, that prevents the employee from continuing to do his or her job. Despite this, the employer may not fire the employee without first providing reasonable opportunities for rehabilitation or assigning the employee alternative work.

Question 29

Intentional and Unintentional Discrimination: The “Unified Approach” in BCGSEU

Answer 29

these distinctions between direct and adverse effect discrimination and between BFORs and the duty to accommodate seem confusing, it’s because they are

• Supreme Court tried to clear up this confusion in its 1999 decision in British Columbia (Public Service Employee Relations Commission) v BCGSEU , 4 commonly known as the Meiorin case.
• The Court, therefore, held that, regardless of whether the discrimination was intentional or unintentional, the standard causing the discrimination is justified only if the employer establishes
  1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
  2. that the employer adopted the standard in an honest and good-faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
  3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. (To be found “reasonably necessary,” a rule or standard must accommodate individual differences to the point of undue hardship to the employer. If the employer can still make additional accommodations before it reaches the point of undue hardship, the standard is not a BFOR in its existing form and remains a case of discrimination.)

Question 30

Harassment and Sexual Harassment

Answer 30

Harassment consists of vexatious comments or conduct directed at a person because of his or her race, ancestry, or other prohibited ground of discrimination.

Sexual harassment is any unwelcome sexual solicitation or advance either by someone in a position of power in relation to the victim (such as an employer or landlord) or by someone whose conduct a person in a position of power has the ability to control (such as a co-worker or fellow tenant of the victim).

If an employee who is harassing others is in a supervisory position, the employer will generally be held liable for the employee’s actions. However, if the harassing employee does not have supervisory functions and is harassing his or her co-workers, the employer may still be held responsible, depending on the circumstances.

Question 31

Reprisals

Answer 31

A reprisal is any unpleasant consequence imposed in retaliation for an action. For example, it would be an offence to fire a worker, refuse to grant a deserved promotion, withhold benefits that are available to other workers, or assign a worker demeaning tasks because he or she rejects an unwanted sexual advance or makes a complaint to a human rights commission.

Question 32

Enforcement of Human Rights Codes

Answer 32

Human Rights Commissions and Human Rights Tribunals
Human rights laws also usually establish a tribunal that will decide the merits of complaints that the human rights commission fails to resolve through conciliation or mediation.

These tribunals hold formal hearings in which they hear witnesses, assess their credibility, and decide whether the human rights code has been breached. The relationship between the human rights commission and the human rights tribunal varies from jurisdiction to jurisdiction.

In some cases, the commission decides whether a complaint has sufficient merit to be heard by the tribunal. If the commission brings a complaint before the tribunal, it may also act as “prosecutor,” representing the complainant or what it considers to be the public interest against the alleged discriminator at the hearing. Some commissions have a veto power. If they decide that a case does not warrant a hearing, the complainant has no standing to bring the complaint before the tribunal

Question 33

Other Methods of Enforcing Human Rights Codes

Answer 33

The Supreme Court of Canada has ruled that human rights claims do not have to be decided by bodies that have human rights expertise.
-specialized bodies set up to resolve disputes in those areas of law, such as the Labour Relations Board, Special Education Tribunal, and Landlord and Tenant Board, as well as some courts, may also have jurisdiction to make a ruling on whether the statutes they enforce have been violated. Where the alleged violation of the employment law, education law, or landlord and tenant law is also a violation of the human rights code, both the tribunal or court with jurisdiction over the subject matter and the human rights commission or tribunal may have jurisdiction to hear the case and provide a remedy.

This is known as concurrent jurisdiction.

when deciding whether to bring a case before a human rights body, a court, or a tribunal that has jurisdiction over the subject area in which the discrimination arose, the first question to ask is whether the court or other tribunal has jurisdiction to decide the human rights issue and grant a remedy for violation of the human rights code, or whether the human rights agency has exclusive jurisdiction.

Question 34

Remedies for Discrimination and Harassment

Answer 34

Human rights codes often give human rights commissions and tribunals wide latitude to fashion remedies to compensate for past violations or to prevent future violations that are appropriate to the circumstances of the particular case.

For example, a store owner might be ordered to apologize to a victim; an employer or landlord might be ordered to offer the complainant an opportunity to apply for the next job opening or vacancy in a rental unit; an employer found to have sexually harassed employees might be ordered to notify the human rights commission every time an employee leaves his or her job; a harassed employee might be awarded money to pay for counselling; an unfairly fired employee might be reinstated and compensated for lost income, hurt feelings, humiliation, and so on.
- human rights bodies often have the power to order governments to change practices and policies that result in systemic discrimination against a group of individuals.

Question 35

Freedom-of-Information and Protection-of-Privacy Statutes

Answer 35

The provincial, territorial, and federal legislatures have all passed laws requiring governments to provide the public with access to general government records while protecting the privacy of “personal information”—that is, information that governments have collected about individuals.

These access and privacy laws are quasi-constitutional because they foster democracy and government accountability.

Freedom-of-information and protection-of-privacy laws generally provide citizens with a broad right of access to all information in the custody or under the control of government bodies unless the information falls within specific exemptions, which are to be narrowly construed.

Exemptions from the right of access generally include Cabinet documents, advice and recommendations from public servants to their superiors, law enforcement records, information received in confidence from other governments, information received from businesses in confidence, and information whose disclosure would harm the government’s economic interests.

Much of the personal information held by governments is also exempted from this broad right of access to preserve personal privacy.

Question 36

The Canadian Bill of Rights

Answer 36

Before the Constitution was amended to include the Charter, Canada had (and still has) a quasi-constitutional statute that codified many of the common law rules of procedural fairness and contained rights similar to those now found in the Charter.
This statute is the Canadian Bill of Rights. The Bill of Rights dictates that all other federal laws must be interpreted and applied, wherever possible, in a manner that does not deprive a person of the right to a fair hearing.

It also provides that every other law of Canada must be interpreted so as not to infringe the rights or freedoms recognized in it, unless the law expressly said otherwise.

Although the Bill of Rights has largely been superseded by the Charter, it is still in force, and courts occasionally rely on its provisions to ensure procedural fairness.

Question 37

in Singh v Minister of Employment and Immigration

Answer 37

in Singh v Minister of Employment and Immigration,
three of the six Supreme Court judges who heard the case ruled that the failure of the Immigration Act to permit the Immigration Appeal Board to give refugee complainants an opportunity to have an oral hearing violated section 2(e) of the Bill of Rights, which states that “no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance to the principles of fundamental justice for the determination of his rights and obligations.” The other three judges applied section 7 of the Charter to reach the same result.

Question 38

Official Languages Laws

Answer 38

• Language rights are considered a class of fundamental human rights because of the importance of language in preserving cultural identity and institutions.

Quasi-constitutional laws have therefore been passed to extend language rights beyond what the Constitution grants.

Language rights have been expanded by the Charter. Section 14 gives any party or witness in proceedings before a court or tribunal who does not understand or speak the language of the proceeding a right to an interpreter. This right is not limited to service in English or French.

in Ontario, the French Language Services Act 13 guarantees the use of both languages in the proceedings of the Legislative Assembly; in bills, statutes, and regulations; and in the provision of government services. The Ontario Court of Appeal used the last of these rights to overrule a decision of the Ontario government to reduce the services provided by a French-language community hospital in an area where the primary language spoken is French. Section 530 of the Criminal Code 15 gives accused persons the right to atrial before a judge or a judge and jury who speak the official language spoken by the accused.

Question 39

adverse effect discrimination:

Answer 39

the act of imposing an appar ently neutral requirement that disproportionately affects a particular individual or group in a negative way based on a ground of discrimination prohibited under a human rights code

Question 40

bona fide occupational requirement:

Answer 40

a requirement or qualification for employment that is essential to the successful carrying out of the duties of a position, and therefore justifies discriminating against an individual who cannot meet the requirement based on one of the grounds of discrimination prohibited under a human rights code; also called a “BFOR”

Question 41

concurrent jurisdiction:

Answer 41

two or more courts or tribunals having authority over the same matters

Question 42

convention:

Answer 42

an agreement among nations, such as a multilateral treaty

Question 43

direct discrimination:

Answer 43

discrimination resulting from a standard that is discriminatory on its face, rather than from a standard that is neutral on its face but has a discriminatory effect; see also adverse effect discrimination

Question 44

duty of reasonable accommodation:

Answer 44

where a requirement or qualification has a disproportionately negative effect on an individual because of a ground prohibited by human rights legislation, the duty of an employer to take all reasonable steps to the point of undue hardship to accommodate the special needs of that individual

Question 45

employment equity:

Answer 45

the elimination of the under representation of individuals in designated groups—such as women, Aboriginals, members of visible minority groups, and people with disabilities—in the workplace

Question 46

equity program:

Answer 46

a program designed to “level the playing field” for disadvantaged groups—for example, an employment, educational, or pay equity program

Question 47

pay equity:

Answer 47

the right of women to receive the same pay as men for work of equal value

Question 48

quasi-constitutional:

Answer 48

in relation to a law, a law that is below a country’s Constitution but above ordinary laws in the hierarchy of laws because it protects rights that, although they may not be explicitly recognized in the Constitution, are very important tosociety

Question 49

sexual harassment:

Answer 49

any unwelcome sexual solicitation or advance either by someone in a position of power in relation to the victim (such as an employer or landlord) or by someone whose conduct a person in a position of power has the ability to control (such as a co-worker or fellow tenant of the victim)