Unit 3 - End of Unit Learning Exercises

Question 1

Oakes Test

Answer 1

The test applied by courts and tribunals when interpreting section 1 of the Canadian Charter of Rights and Freedoms. The test requires courts and tribunals to balance the interest of individuals in having their Charter rights and freedoms protected against any board social benefits that would result from allowing a restriction of a Charter right or freedom. Named after the R v. Oakes, the test was formulated by the Supreme Court of Canada.

Question 2

The Oakes Test

Part One: The Pressing and Substantial Concern Test

Answer 2

Requires that the object of, or the reason for, the limitation on the Charter right must relate to “a pressing and substantial concern”. This means that the government must persuade the court or tribunal that its actions were taken to address a serious public concern. (usually part one is passed easily)

Question 3

The Oakes Test

Part Two: The Proportionality Test

Answer 3

If the court or tribunal rules that the government passes part one, the issue moves on to part two. The proportionality test is as follows:

1. The measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. They must be rationally connected to the objective
2. The means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question.
3. There must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and objective which has been identified as of “sufficient importance”

Question 4

The Oakes Test
Part Two: The Proportionality Test
In Short

Answer 4

In order to justify a violation of a Charter right or freedom, a government must satisfy all three component of the proportionality test .

1. Rational connection
2. Minimal impairment
3. Balance of harm

Question 5

The Meiorin Test

Answer 5

A test resulting for the British Columbia v. BCGSEU (“Meiorin”) (1999) case. The employer must provide three items to justify a prima facie discriminatory workplace standard and prove it is a BFOR.

1. That the employer adopted the standard for a purpose that is rationally connected to the performance of the job
2. That the employer adopted the standard in an honest and good faith that it was necessary to the fulfillment of that purpose
3. That the standard is reasonably necessary to the accomplishment of that legitimate purpose, which requires the demonstration that it is impossible to accommodate the employee without imposing undue hardship on the employer

Question 6

Analogous grounds

Answer 6

Prohibited grounds of discrimination in equality legislation that are not enumerated (listed) in the legislation, but which the courts have read into the legislation because of their similarity to the enumerated grounds grounds that are protected (e.g. sexual orientation, marital status, and citizenship)

Question 7

Arises and occurs test

Answer 7

The test used by WCB to determine whether an injury is compensable. In short, it is used to determine whether an injury arose from and occured buring the course of work

Question 8

Bona fide occupational requirement (BFOR)

Answer 8

A defence to discrimination that an employer may use to prove that a discriminatory rules, standard, or practice was enacted for legitimate business reasons; it requires that the employer prove that it cannot accomodate the complainant’s needs without causeing itself undue hardship

Question 9

Contributory negligence

Answer 9

Negligence of an injury party that contributes to the loss suffered or damage incurred due to the negligence of another party

Question 10

Direct discrimination

Answer 10

A type of discrimination in which a rule, standard, or practice distinguishes an individual or group based on a personal characteristic, such as separate pay scales for men and work or the practice of hiring people of only one gender or one skin colour

Question 11

Duty to accommodate

Answer 11

A legal requirment in human rights law to take steps to remove discriminatory barriers to employment, including altering schedules, rules, or work patterns, or chaneing the physical design of the workplace

Question 12

Enumerated grounds

Answer 12

The characteristics listed in equality legislation (including the Canadian Charter of Rights and Freedoms) upon which discrimination is prohibited, such as sex, age, skin colour, and religion

Question 13

Indirect discrimination

Answer 13

A type of discimination in which a rule, standard, or practice treat everyone the same on its face, yet has an adverse impact on some people because of a personal characteristic.

Question 14

Internal responsibility system

Answer 14

A system of shared responsibility between employers and workers for workerplace health and safety

Question 15

Judicial review

Answer 15

A process through which a decision of an expert administrative tribunal is appealed to a court on the basis that the tribunal exceeded its authority (or jurisdiction) as defined in the statute that created it or that the tribunal’s decision was wrong. How much deference a court must give to the expert tribunal’s decision is a complex question that is considered in a field of law known as administrative law

Question 16

Just cause provision

Answer 16

A term in a collective agreement between a union and an employer that requires that the employer demonstrate “just case”, or a good business reason, to discipline or dismiss an employee

Question 17

Just cause

Answer 17

Refers to a standard of reasonableness used to evaluate a person’s actions in a given set of circumstances. If a person acts with just cause, her or his actions are based on reasonable grounds and committed in Good Faith.

Question 18

Prima facie

Answer 18

In human rights law, when a complainant provides sufficient evidence that he or she has been the victim of discrimination on a ground prohibited in a human rights statue, which shifts the burden to the employer to establish that no unlawful discrimination occured

Question 19

Secondary picketing

Answer 19

Picketing in a labour dispute that take place at a location other than the workplace where the workers engaged in the dispute are employed

Question 20

Systemic discrimination

Answer 20

Practices, behavious, norms, or policies within an organization that may be unintentional and unobservedyet prepetuatedisadvantages for certain individuals due to a personal attribute or characteristic (e.g. race,gender, age, disability, or religion)

Question 21

Undue hardship

Answer 21

The legitimate defence that an employer may raise to justify that they could not provide an accommodation to an employee. This standard is demanding and requries the employer to demostrate that signifcant difficulties - beyond mere inconenience - would result ifi it had to accomodate the employee

Question 22

The Oakes Test

Two Parts

Answer 22

Part One: The Pressing and Substantial Concern Test

Part Two: The Proportionality Test

Question 23

The Oakes Test further explaination

Answer 23

Section 1 of the Charter requires courts and tribunals to weigh the harm to individual Canadians of having a Charter right or freedom restricted by government action against the interests of the broad Canadian society. If ther greater good is served by premitting the government to violate a Charter right or freedom, then section 1 premits a court or tribunal to allow that violation. R. v Oakes decision developed a test for applying section 1 of Charter infringment