Discrimination and Harassment Case Highlights the Difficulties in Choosing the Appropriate Forum

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LL sued her former employer Canadian Natural Resources Ltd (CNRL) for damages for its failure to protect her (as her employer) from ongoing sexual harassment and abuse. LL also claimed damages for constructive dismissal. CNRL applied to have the actions summarily dismissed or for an order to have portions of LL’s claims struck (at paras 1-3).

CNRL employed LL for approximately four years (2010 to 2014) as a Testing Technician. LL alleged that beginning on her first day of work (on Shift A), she experienced verbal, emotional and sexual harassment, discrimination and abuse from her male colleagues and the male team lead (at para 4). The types of harassment and abuse included (at para 5):

  • Inappropriate and discriminatory comments against Aboriginal people;

  • Inappropriate and discriminatory comments against women;

  • Inappropriate sexual comments;

  • Inappropriate and unwanted sexual contact;

  • Breaches of her privacy when her supervisor illegally obtained her home address and visited her home uninvited;

  • Her supervisor stalking her by telephone and in person;

  • Unlawful coercion of the Respondent into a sexual relationship with her supervisor under threat of being fired; and

  • Belittling and demeaning treatment of the Respondent in the presence of other team members.

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Effects of the Notwithstanding Clause on Human Rights

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Recently, there has been much discussion of the use of the notwithstanding clause, which is section 33(1) of the Canadian Charter of Rights and Freedoms (Charter). Section 33(1) reads:

Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.

Section 33(3) provides that a declaration made under section 33(1) shall cease to have effect after five years and section 33(4) states that a declaration may be re-enacted by Parliament or the legislatures.

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Over-Representation of Indigenous (and other Racialized) Children in the Child Welfare System: Human Rights Aspects

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For the past few decades, there has been growing publicity about the over-representation of Indigenous and other minority children in our child welfare systems across Canada. The 2015 findings of the Truth and Reconciliation Commission confirmed that the over-representation of Indigenous children in Canadian child welfare systems has reached a crisis level. Even the United Nations Committee on the Rights of the Child in 2012 noted that Canada needed to take urgent measures to address the “discriminatory over-representation” of Indigenous children who were in “out-of-home” care. The Ontario Human Rights Commission recently released a report called Interrupted Childhoods: Over-representation of Indigenous and Black children in Ontario child welfare (February 2018) and this report confirms what others have been saying.

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Mixed Results for Corrections Officer Terminated for Dishonesty

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Case Commented On: Alberta Union of Provincial Employees v Alberta, 2018 ABQB 524 (AUPE)

Justice GS Dunlop of the Alberta Court of Queen’s Bench recently heard an application for judicial review of a three-day suspension and termination of a long-standing employee of the Province of Alberta. For just about 30 years, Todd Ross (Ross) was a Correctional Peace Officer (CPO) employed by the Province. He was a member of the Alberta Union of Provincial Employees (AUPE) and was also a union representative (AUPE at para 1). In April 2013, a new Edmonton Remand Centre opened (AUPE at para 2). Ross had been terminated on June 28, 2013 on three grounds:

  • His communication with management about the new Edmonton Remand Centre in April 2013; Ross wrote and sent two emails to the Executive Director and the Assistant Executive Director of the new Edmonton Remand Centre, which the arbitrator had described Ross as ‘insolent, insubordinate and untruthful’; Ross had also erred when he addressed his comments to the Deputy Minister and the Assistant Deputy Minister;

  • His actions when he was relieved with pay on April 26, 2013; and

  • His actions while he was on leave with pay after April 26, 2013; the employer alleged that Ross had induced other CPOs to engage in an illegal strike between April 26 and May 3, 2013—however, the arbitrator held that this allegation was not proven (AUPE at paras 10 and 11).

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Finding Clarity: ABQB Upholds Decision by Worker’s Compensation Board’s Appeals Commission

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Case Commented On: In-Line Contracting Partnership v Alberta (Workers’ Compensation Appeals Commission), 2018 ABQB 529.

In-Line Contracting Partnership v Alberta (Workers’ Compensation Appeals Commission) (ILCP) is a decision regarding the proper interpretation of “suitable” permanent modified work in the context of the policies of the Worker’s Compensation Board (“WCB”). On November 3, 2013, Tracy McKnight, who worked as a labourer on a road construction crew, suffered four broken ribs and a soft tissue injury when a co-worker fell on her (ILCP at para 1). Ms. McKnight took time off work, during which time she was compensated by the WCB. By March, the WCB found that Ms. McKnight was able to return to work, and her employer, In-Line Contracting Partnership (“In-Line”), offered her a job as a labourer, which Ms. McKnight rejected. A few months after, the WCB was alerted to the fact that Ms. McKnight had not fully recovered, and is now suffering from a permanent disability. This was communicated to In-Line, who offered Ms. McKnight modified work, which she once again rejected. The Appeals Commission for the WCB found that the job offer for permanent modified employment was not suitable according to the WCB’s guidelines (ILCP at para 3). ILCP is an appeal from the WCB’s Appeals Commission to the Court of Queen’s Bench.

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ABQB Upholds Arbitrator’s Decision on Innocent Absenteeism, the Duty to Accommodate and Notice

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CCase Commented On: Canadian National Railway Company v Teamsters Canada Rail Conference, 2018 ABQB 405 (CanLII) (CNR)

Canadian National Railway (CNR) applied unsuccessfully to the Alberta Court of Queen’s Bench (ABQB) (per Justice W.N. Renke) for a review of the Arbitration Award made under Case No 4510, December 5, 2016 (the Award). Because CNR is a federal undertaking, the applicable legislation includes the Canada Labour Code, RSC 1985 c L-2 (CLC) and the Canadian Human Rights Act, RSC 1985 c H-6 (CHRA).

CNR terminated an employee (Grievor) for innocent absenteeism on January 30, 2015. The Teamsters Canada Rail Conference (Union) submitted a grievance opposing the termination. Because CNR declined the grievance, the matter went to Arbitration (before Arbitrator John Moreau) as provided for in the Memorandum of Agreement between CNR and the Union (CNR at paras 3 and 4). The Grievor was successful at the Arbitration, and Justice Renke upheld the Arbitrator’s decision.

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Open Court Principle: ABCA Agrees with Less than Full Disclosure in Some Circumstances

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Case Commented On: Aboriginal Peoples Television Network v Alberta (Attorney General), 2018 ABCA 133 (CanLII) (APTN)

In 2011, Casey Armstrong was stabbed to death, leading to the arrest of Wendy Scott and Connie Oakes, a Cree woman. Scott pled guilty to the second-degree murder charge, while Oakes decided to undergo a jury trial, which led to her eventual conviction (APTN, at para 4). During Oakes’ trial, Scott acted as a key witness for the Crown. On cross-examination, Scott was questioned about three videotaped statements she had made to the police following her arrest. To highlight the inconsistencies between Scott’s in-court testimony and the police statements, specific small portions of the videotapes were played to the jury and judge. Although only parts of the tapes were shown, the trial judged marked the videos collectively as “Exhibit F for identification” (APTN, at para 5).

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Is Non-denominational Education a Secularism Principle or a Violation of Human Rights Law?

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In 2015, the Alberta Human Rights Tribunal (AHRT) found that a private school in Calgary (Webber Academy) had unlawfully discriminated against two Muslim high school students by prohibiting them from performing certain prescribed Sunni prayers on the school campus. The AHRT awarded the students $12,000 and $14,000 respectively as damages for distress, injury and loss of dignity (see 2015 AHRC 8 (CanLII)). The Court of Queen’s Bench of Alberta (per Justice G.H. Poelman) upheld that decision (see 2016 ABQB 442 (CanLII), and see the ABlawg post on this decision). Webber Academy appealed the decision to the Alberta Court of Appeal (ABCA), adding new constitutional issues. The Court of Appeal (per Justices Jack Watson, Patricia Rowbotham, and JD Bruce MacDonald) sent the matter back to the AHRT for re-determination after it has heard appropriate evidence and argument on all the issues. The ABCA held that the AHRT was better placed to make the necessary findings of fact, mixed fact and law, or questions of law alone that were within its jurisdiction. The ABCA noted that there may be remaining discrete issues under the Canadian Charter of Rights and Freedoms, such as the constitutionality of s 4 of the Alberta Human Rights Act, RSA 2000, c A-25.5 (AHRA), which prohibits discrimination in services customarily available to the public, including education. The ABCA ordered a new hearing with a new panel of the Tribunal, and the AHRT was ordered to refer any Charter questions by way of a stated case to the Court of Queen’s Bench for resolution. (Webber at para 52).

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The Balance of Confidentiality

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Campbell involves an appeal from a decision of the Chief Electoral Officer of Alberta to sanction Jarrett Campbell and Jaskaran Sandhu during the provincial election held on May 5, 2015. The Chief Electoral Officer applied to the Court of Queen’s Bench for guidance regarding what should be contained in a Certified Record produced by the Electoral Officer under Alberta’s Elections Act, RSA 2000, c E-1 [Elections Act]. The main issue before the court was whether the Chief Electoral Officer was able to redact information that is confidential and irrelevant to the appeal (Campbell, at para 2).

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