Human Rights and Workplace Privacy

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LANCASTER'S
HUMAN RIGHTS AND WORKPLACE
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May 27, 2009



Issue No. 120



- CONTENT -




DENYING SEVERANCE PAY TO NON-ACTIVE AND DISABLED EMPLOYEES IS NOT DISCRIMIN=
ATORY, B.C. COURT OF APPEAL RULES
Seven years after Interfor partially closed mill operations in British Colu=
mbia, the B.C. Court of Appeal was required to consider whether the agreeme=
nt negotiated between the employer and the union for severance pay violated=
the Human Rights Code. The negotiated severance applied to those who lost =
their jobs due to the mill's partial closure, but did not extend to disable=
d and non-active employees. The B.C. Court of Appeal ruled that the terms o=
f the agreement made a permissible distinction, and did not result in prohi=
bited discrimination. Details below.

HUMAN DIGNITY IS NOT AN ADDITIONAL TEST TO BE MET IN ESTABLISHING DISCRIMIN=
ATION UNDER THE CHARTER, SUPREME COURT CLARIFIES
In a decision that has implications for employment-related human rights com=
plaints, the Supreme Court of Canada declared that its decision in Law did =
not establish an additional "human dignity" test as a hurdle to be crossed =
in establishing claims of discrimination under s.15 of the Charter. Rather,=
its discussion of human dignity in that case was meant to be a "philosophi=
cal enhancement" of the principles of substantive discrimination that have =
defined the Court's s.15 jurisprudence on discrimination. Specifically, the=
Court explained, the four factors identified in Law relate to the two base=
s of substantive discrimination, namely (1) perpetuating prejudice or disad=
vantage; or (2) stereotyping. Pointing out that human dignity lies at the c=
ore of all rights and freedoms guaranteed by the Charter, the Court directe=
d s.15 claimants to the principles of substantive discrimination first set =
out in the Andrews case. Details below.



- DETAILED REPORTS -




DENYING SEVERANCE PAY TO NON-ACTIVE AND DISABLED EMPLOYEES IS NOT DISCRIMIN=
ATORY, B.C. COURT OF APPEAL RULES

The Facts:

The partial closure of British Columbia's International Forest Products Ltd=
. ("Interfor") took place in August 2001, following which only some of the =
original employees were required. The company and its union negotiated an a=
rrangement under which the most senior employees in the discontinued operat=
ions had the option of remaining employed in the smaller operation, or of r=
eceiving a voluntary severance package. Workers who had insufficient senior=
ity to bump into jobs at the smaller operation were also entitled to severa=
nce pay.

The situation was more complicated in the case of non-active employees. On =
the one hand, they were treated like their actively employed co-workers if =
they returned to active employment. On the other hand, while non-active dis=
abled employees who did not return to work still received workers' compensa=
tion, short-term disability, or long-term disability benefits, they were no=
t entitled to severance pay under the negotiated agreement.

Disabled employees who did not receive a severance payment filed a human ri=
ghts complaint under B.C.'s Human Rights Code, alleging that the agreement =
discriminated against non-active workers "[b]y refusing to offer the severa=
nce payment to those employees off work due to disability...." In a decisio=
n dated April 11, 2006, the B.C. Human Rights Tribunal held that denying se=
verance pay - an earned benefit based on length of service - to a disabled =
employee for the sole reason that (s)he was not actively employed due to di=
sability amounted to prohibited discrimination: see Lancaster's Disability =
& Accommodation E-Bulletin, May 8, 2006, Issue No. 66.

The Tribunal found adverse treatment because only those employees who were =
absent from their jobs due to a disability were denied the option of receiv=
ing severance. It found that the partial closure had an impact on the compl=
ainants for four reasons:

(1) those complainants without seniority or the required level of competenc=
y lost all possibility of future employment with Interfor;
(2) the complainants faced reduced opportunities for accommodation by Inter=
for that might have allowed them to return to work;
(3) under the agreement between Interfor and the union, so long as they rem=
ained disabled, the complainants lost the investment of their able-bodied y=
ears with Interfor; and
(4) the term "active employment," as used in the agreement, was inherently =
discriminatory and would impact on the dignity of the complainants.

The Tribunal concluded that "all the indicia of discrimination are present =
in this case. In order for an employee to enjoy severance, a benefit tied t=
o years of service to an employer, that employee was required to be able-bo=
died."

The employer challenged that decision in the B.C. Supreme Court. However, t=
he B.C. Supreme Court rejected the employer's petition on February 13, 2007=
: see Lancaster's Disability & Accommodation E-Bulletin, May 16, 2007, Issu=
e No. 88. The employer further appealed this ruling to the B.C. Court of Ap=
peal.

The Arguments:

At the Court of Appeal, the employer argued that the lower court had erred =
by: (a) concluding that the purpose of the settlement was to provide an ear=
ned benefit to employees based on length of service; and (b) finding that a=
prima facie case of discrimination had been established.

[Editors' Note: The arguments of the B.C. Human Rights Commission and the o=
riginal complainants were not set out.]

The Decision:

Writing for a three-member panel of the B.C. Court of Appeal, Justice Richa=
rd Low allowed the employer's appeal, finding that no prima facie case of d=
iscrimination had been established.

The appeal court considered the impact of two Supreme Court of Canada decis=
ions dealing with discrimination which were not considered by either the Hu=
man Rights Tribunal or the lower court.

First, Low referred to the decision in Law Society of British Columbia v. A=
ndrews, [1989] S.C.J. No. 6 (QL): see Lancaster's Canadian Labour & Employm=
ent Law Journal, Volume 13, No. 3. In that case, the Supreme Court declared=
that "every difference in treatment between individuals under the law will=
not necessarily result in inequality...." Furthermore, the Court defined d=
iscrimination as follows:

[D]iscrimination may be described as a distinction, whether intentional or =
not but based on grounds relating to personal characteristics of the indivi=
dual or group, which has the effect of imposing burdens, obligations, or di=
sadvantages on such individual or group not imposed on others, or which wit=
hholds or limits access to opportunities, benefits, and advantages availabl=
e to other members of society.

The Court also held in Andrews that distinctions between individuals based =
on their individual merits and capacities, rather than their association wi=
th a group, will rarely be classed as discriminatory.

Second, in McGill University Health Centre (Montreal General Hospital) v. S=
yndicat des employ=E9s de l`H=F4pital g=E9n=E9ral de Montr=E9al, [2007] S.C=
.J. No. 4 (QL), the Supreme Court stated the following regarding the differ=
ence between a permissible distinction and prohibited discrimination:

Not every distinction is discriminatory. It is not enough to impugn an empl=
oyer's conduct on the basis that what was done had a negative impact on an =
individual in a protected group. Such membership does not, without more, gu=
arantee access to a human rights remedy. It is the link between that group =
membership and the arbitrariness of the disadvantaging criterion or conduct=
, either on its face or in its impact, that triggers the possibility of a r=
emedy. And it is the claimant who bears this threshold burden. [emphasis in=
original]

In his application of these principles to the case at bar, Justice Low was =
particularly persuaded by what he considered to be a pivotal finding of fac=
t, i.e.:

[T]he [non-active disabled employees] were not at all affected by the parti=
al closure. After the closure occurred, each of the respondents (unlike tho=
se among their fellow employees who did not get replacement jobs) continued=
to be in the employ of Interfor while receiving statutory workers' compens=
ation or contractual disability benefits. Had they become able to return to=
work, they would have either continued to work for Interfor by obtaining a=
replacement job or they would have received severance pay in accordance wi=
th the terms of the agreement.

Justice Low acknowledged that the employment of the non-active disabled wor=
kers eventually ended, but he considered that "the termination of their emp=
loyment was a product of the terms of the collective agreement - retirement=
or unacceptable absenteeism. The respondents attacked neither of those con=
tractual provisions under the Code."

The parties agreed that the purpose of the agreement between Interfor and t=
he union was to "'provide severance pay to those employees who would lose t=
heir employment due to the partial closure." [emphasis in original] In ligh=
t of this intention, and given the fact that none of the non-active workers=
lost their employment due to the partial closure of the plant, Low conclud=
ed that the denial of the severance payment to those who did not fit Interf=
or's eligibility requirement of active employment was not discriminatory. R=
ather, this requirement was a permissible distinction.

According to Low, the evidence supported the following conclusion:

[T]he agreement contained ... a fair and commercially-sensible distinction =
between the respondents and active employees on the basis of availability f=
or work. It was clearly not a distinction based upon physical or mental dis=
ability. The respondents did not receive severance pay because they did not=
become available for work before retirement or before Interfor invoked the=
absenteeism clause in the collective agreement. They suffered no disadvant=
age under the agreement between Interfor and the union....

In the result, the Court quashed the decision of the Human Rights Tribunal.

Comment:

Justice Low held that a prima facie case of discrimination had not been est=
ablished in the present case: "The agreement caused no negative impact on t=
he respondents and the distinction was not discriminatory on a proper appli=
cation of Andrews."

However, assuming that the application of Andrews is appropriate here, it c=
an be argued that a prima facie case of disability-based discrimination was=
in fact made out in this case. First, non-active disabled employees were d=
eprived of the offer of a severance payment which their actively-employed c=
olleagues received due to their "unavailability to work." While Low maintai=
ned that this distinction was unrelated to the prohibited ground of disabil=
ity, it can be argued that the requirement of being available for work in t=
hese circumstances is really a euphemism for being sufficiently able-bodied=
to work.

Second, the plant closure had a detrimental impact on these non-active disa=
bled employees. While they admittedly remained in receipt of benefits, the =
Tribunal found that they suffered the following negative effects:

(1) those complainants without seniority or the required level of competenc=
y lost all possibility of future employment with Interfor;
(2) the complainants faced reduced opportunities for accommodation by Inter=
for that might have allowed them to return to work; [and]
(3) under the agreement between Interfor and the union, as long as they rem=
ained disabled, the complainants lost the investment of their able-bodied y=
ears with Interfor.

The Court of Appeal, however, gave short shrift to the impact of the plant =
closure on Interfor's non-active disabled employees, even though, it could =
be argued, this resulted in adverse treatment of these employees on the bas=
is of a prohibited ground. It is telling that, while the B.C. Human Rights =
Tribunal relied on Ontario Nurses' Assn. v. Mount Sinai Hospital (2004), 69=
O.R (3d) 267 [reviewed in Lancaster's Human Rights Reporter, July/August, =
2005], which struck down a legislative provision that denied severance pay =
to disabled employees as violative of the Charter of Rights, the B.C. Court=
of Appeal, in its reasons, did not address that decision.

Case Name: International Forest Products Ltd. v. The British Columbia Human=
Rights Tribunal, Sandhu and Others
Jurisdiction: British Columbia
Court: British Columbia Court of Appeal
Judges: Richard Low, Mary Saunders, Peter Lowry
Date: May 9, 2008
Citation: [2008] B.C.J. No. 844 (QL)
Full Text: http://onlinedb.lancasterhouse.com/images/up-BCCA_Sandhu.pdf


________________________________




HUMAN DIGNITY IS NOT AN ADDITIONAL TEST TO BE MET IN ESTABLISHING DISCRIMIN=
ATION UNDER THE CHARTER, SUPREME COURT CLARIFIES

The Facts:

In 1992 the federal government introduced its "Aboriginal Fisheries Strateg=
y" (the AFS or "strategy") to enhance aboriginal involvement in the commerc=
ial fishery. A key component of the strategy was the introduction of pilot =
sales programs, one of which resulted in the issuance of a communal fishing=
licence to three designated bands. Granted pursuant to the Aboriginal Comm=
unal Fishing Licences Regulations (ACFLR), the licence permitted individual=
s designated by the bands the exclusive right to fish for sockeye salmon at=
the mouth of the Fraser River for a 24-hour period on August 19, 1998, and=
to use the catch for food, social, and ceremonial purposes as well as for =
sale.

The appellants, a group of commercial fishers who were excluded from the fi=
shery for the 24-hour period covered by the communal fishing licence, stage=
d a protest for the purpose of bringing a constitutional challenge. When th=
ey were charged with fishing at a prohibited time, the appellants sought de=
clarations that the communal fishing licence, the ACFLR and related regulat=
ions, as well as the AFS, were unconstitutional.

Justice William Kitchen of the British Columbia Provincial Court stayed the=
charges on the basis that the appellants' equality rights under s.15(1) of=
the Charter were breached by the communal fishing licence and that the vio=
lation could not be justified under s.1, which provides that the rights and=
freedoms set out in the Charter are "subject ... to such reasonable limits=
prescribed by law as can be demonstrably justified in a free and democrati=
c society." (See [2003] B.C.J No. 1772 (QL).)

The government's appeal was successful. Chief Justice Donald Brenner of the=
B.C. Superior Court determined that the pilot sales program was not discri=
minatory in purpose or effect because it did not promote or perpetuate the =
view that the appellants were less capable or worthy of recognition or valu=
e as human beings or as members of Canadian society (2004 BCSC 958). He lif=
ted the stay and entered convictions against the appellants. That decision =
was upheld by a five-member panel of the B.C. Court of Appeal (2006 BCCA 27=
7) and the case went to the Supreme Court of Canada in December 2007.

The Charter Equality Provisions:

Section 15(1) provides that "[e]very individual is equal before and under t=
he law and has the right to the equal protection and equal benefit of the l=
aw without discrimination and, in particular, without discrimination based =
on race...."

Section 15(2) states that "[s]ubsection (1) does not preclude any law, prog=
ram or activity that has as its object the amelioration of conditions of di=
sadvantaged individuals or groups including those that are disadvantaged be=
cause of race...."

The Arguments:

The appellants argued that the communal fishing licence discriminated again=
st them on the basis of race, contrary to s.15(1) of the Charter. The gover=
nment submitted that the program was ameliorative and therefore protected f=
rom a claim of discrimination by operation of s.15(2).

The Decision:

The Supreme Court of Canada unanimously dismissed the appeal.

Writing on behalf of eight members of the Court, Chief Justice Beverley McL=
achlin and Justice Rosalie Abella reviewed the principles that have defined=
s.15 jurisprudence since the Supreme Court first examined the issue almost=
20 years previously. In Andrews v. Law Society of British Columbia, [1989]=
1 S.C.R. 143, Justice William McIntyre declared that not every distinction=
is discriminatory, and that the notion of formal equality, i.e. treating "=
likes" alike, may in fact produce inequality because of the "infinite varie=
ty of personal characteristics, capacities, entitlements and merits among t=
hose subject to a law." The focus, he declared, must therefore be on the ef=
fect of the law on the individual or group concerned, such that the test fo=
r establishing discrimination contrary to s.15 involves a two-step analysis=
: (1) Does the law create a distinction based on an enumerated or analogous=
ground? (2) Does the distinction create a disadvantage by perpetuating pre=
judice or stereotyping?

Although a decade later the Court's judgment in Law v. Canada (Minister of =
Employment and Immigration), [1999] 1 S.C.R. 497, suggested that discrimina=
tion should be defined in terms of the impact of the law or program on the =
"human dignity" of members of the claimant group, the test did not change, =
the judges declared. While Law identified four contextual factors by which =
to measure the impact on human dignity, the majority noted, each of those r=
elated to the two primary indicators of discrimination as set out in Andrew=
s: the perpetuation of disadvantage and stereotyping. Specifically, the Cou=
rt pointed out that the first and fourth Law factors - pre-existing disadva=
ntage and the nature of the interest affected - go to perpetuation of disad=
vantage and prejudice. The second Law factor, the degree of correspondence =
between the differential treatment and the claimant group's reality, deals =
with stereotyping. Lastly, the ameliorative purpose or effect of a law or p=
rogram (the third Law factor) was noted to be relevant to the application o=
f s.15(2) as well as possibly going to the question under s.15(1) of whethe=
r the effect of the law is to perpetuate disadvantage. The Court summarized=
the impact of Law on the s.15 Charter jurisprudence as follows:

Viewed in this way, Law does not impose a new and distinctive test for disc=
rimination, but rather affirms the approach to substantive equality under s=
.15 set out in Andrews and developed in numerous subsequent decisions. The =
factors cited in Law should not be read literally as if they were legislati=
ve dispositions, but as a way of focussing on the central concern of s.15 i=
dentified in Andrews - combatting discrimination, defined in terms of perpe=
tuating disadvantage and stereotyping.... The central purpose of combatting=
discrimination, as discussed, underlies both s.15(1) and s.15(2). Under s.=
15(1), the focus is on preventing governments from making distinctions base=
d on the enumerated or analogous grounds that have the effect of perpetuati=
ng group disadvantage and prejudice; or impose disadvantage on the basis of=
stereotyping. Under s.15(2), the focus is on enabling governments to pro-a=
ctively combat existing discrimination through affirmative measures.

With this background in mind, the Court considered the interplay between s.=
15(1) and 15(2). While previous decisions on these subsections had consider=
ed whether the latter was to be treated as an interpretive aid to the forme=
r, or more properly understood as an exception to the prohibition against d=
iscriminatory laws, the Court preferred an approach which treated the provi=
sions as confirmatory of one another. As stated by Professor Peter Hogg in =
Constitutional Law of Canada (5th ed. 2007): "Under a substantive definitio=
n of equality, different treatment in the service of equity for disadvantag=
ed groups is an expression of equality, not an exception to it."

In the result, the Court established the following analytical framework: "O=
nce the s.15 claimant has shown a distinction made on an enumerated or anal=
ogous ground, it is open to the government to show that the impugned law, p=
rogram or activity is ameliorative and, thus, constitutional. This approach=
has the advantage of avoiding the symbolic problem of finding a program di=
scriminatory before 'saving' it as ameliorative, while also giving independ=
ent force to a provision that has been written as distinct and separate fro=
m s.15(1). Should the government fail to demonstrate that its program falls=
under s.15(2), the program must then receive full scrutiny under s.15(1) t=
o determine whether its impact is discriminatory." While allowing for the p=
ossibility of future refinement, the Court formulated a two-part test under=
s.15(2): the law or program must (a) have a remedial purpose as one of its=
objectives; and (b) target a disadvantaged group identified by the enumera=
ted or analogous grounds.

Applying these principles, the judges accepted that the communal fishing li=
cence imposed a distinction based on race, but determined that the governme=
nt program at issue was protected by s.15(2) and did not violate the equali=
ty guarantee. "The disadvantage of aboriginal people is indisputable," the =
majority stated, and the program's objective was to promote band self-suffi=
ciency by "redress[ing] the social and economic disadvantage of the targete=
d bands," which in this case involved the creation of economic opportunitie=
s.

Justice Michel Bastarache concurred with the majority in the result, but di=
d so not on the basis of s.15(2), but s.25 of the Charter which states: "Th=
e guarantee in this Charter of certain rights and freedoms shall not be con=
strued so as to abrogate or derogate from any aboriginal, treaty or other r=
ights or freedoms that pertain to the aboriginal peoples of Canada." In Bas=
tarache's view, s.25 served "the purpose of protecting the rights of aborig=
inal peoples where the application of the Charter protections for individua=
ls would diminish the distinctive, collective and cultural identity of an a=
boriginal group...." In short, section 25 applied to shield from Charter sc=
rutiny "legislation that distinguishes between aboriginal and non-aborigina=
l people in order to protect interests associated with aboriginal culture, =
territory, sovereignty or the treaty process."

Comment:

The Supreme Court in this case realized that its discussion of human dignit=
y in Law created difficulties when lower courts began treating it as a new =
legal test "rather than the philosophical enhancement it was intended to be=
."

Although Kapp definitively lays to rest the notion of a separate "human dig=
nity test" or "Law analysis" requiring an examination of each of the four c=
ontextual factors identified in that case, nothing in the decision would ap=
pear to shed light on the question of whether the requirements of discrimin=
ation under Charter jurisprudence apply equally in the human rights context=
. In other words, is a human rights complainant required to prove, as part =
of a prima facie case, that s/he suffered (1) differential treatment, (2) o=
n the basis of a prohibited ground, (3) in a manner that perpetuates disadv=
antage or is based on stereotype? The so-called "traditional" human rights =
analysis does not include the third step, which is the critical element of =
substantive discrimination as discussed in Andrews and reaffirmed in Kapp.

The current debate in human rights jurisprudence is not limited to whether =
and when a "Law analysis" applies per se, but engages this broader question=
of whether substantive discrimination must be established as part of the p=
rima facie case. For example in Baum v. Calgary (City), [2008] A.J. No. 147=
9 (QL), Justice Kristine Eidsvik of the Alberta Court of Queen's Bench held=
that the removal of a disabled worker from his millwright position did not=
amount to prima facie discrimination because it was based on his actual ph=
ysical abilities and not stereotypes and arbitrary assumptions about the di=
sabled. Although the judge did not expressly refer to "s.15 Charter jurispr=
udence" or the "Law analysis," the element of stereotype clearly derives fr=
om the definition of substantive discrimination as set out in Andrews.

While the approach adopted in Baum is not widespread, it finds support in t=
he concurring minority opinion of Justice Rosalie Abella in McGill Universi=
ty Health Centre (Montreal General Hospital) v. Syndicat des employes de L'=
H=F4pital General de Montreal, [2007] 1 S.C.R. 161 [reviewed in Lancaster's=
Disability & Accommodation E-Bulletin, March 1, 2007, Issue No. 84]. In th=
at case, the Court unanimously restored an arbitrator's ruling that the emp=
loyer did not violate human rights legislation when it terminated a disable=
d employee who had not worked for three years and had no reasonable prospec=
t for recovery. Six members of the Court ruled that, although the terminati=
on was prima facie discriminatory because it was due to the employee's disa=
bility, the hospital discharged its duty to accommodate to the point of und=
ue hardship. On behalf of three judges, Justice Abella held that the questi=
on of accommodation did not arise because there was no prima facie discrimi=
nation. Abella reasoned that "the essence of discrimination is in the arbit=
rariness of its negative impact," and that preventing discrimination "is ac=
hieved by preventing the exclusion of individuals from opportunities and am=
enities that are based not on their actual abilities, but on attributed one=
s.... It is the link between that group membership and the arbitrariness of=
the disadvantaging criterion or conduct" that the claimant bears the initi=
al onus of establishing.

Consequently, notwithstanding Kapp's clarification of the discrimination an=
alysis under the Charter, there is likely to remain uncertainty as to wheth=
er and when - if ever - a requirement of substantive discrimination should =
be imported into the human rights prima facie discrimination analysis. Inde=
ed, at least one post-Kapp tribunal decision bears this out. In Miller v. B=
ritish Columbia Teachers' Federation, [2009] B.C.H.R.T.D. No. 34 (QL), Trib=
unal member Lindsay Lyster specifically referred to Kapp and declared that =
substantive discrimination is the test for a prima facie case in all human =
rights complaints. She allowed, however, for a difference in the way that t=
est would play out in different types of claims, in a manner that is remini=
scent of the "government overtones" approach that developed with respect to=
the application of Law (prior to the release of Kapp): "In many cases, pri=
ma facie discrimination in [the substantive] sense will be readily establis=
hed on proof of the existence of adverse treatment related to a ground proh=
ibited under the Code. In others, particularly those where competing valid =
public policies or values are in issue, something more may be required, and=
the Law factors, and the focus they bring on human dignity, may be of assi=
stance in deciding whether prima facie discrimination has been established.=
"

Undoubtedly human rights complainants deserve to know whether they have the=
additional burden - beyond showing adverse treatment related to a prohibit=
ed ground - of proving that the employer's conduct was arbitrary and based =
on assumptions and stereotypes; or whether this factor remains part of the =
accommodation analysis which focuses on conducting an individualized assess=
ment of the employee's situation and devising an appropriate response on th=
at basis. The difference is one of the shifting onus of proof which, as sta=
ted in Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2 S=
.C.R. 536 (O'Malley), reflects the fact that it is the employer who possess=
es the information relevant to accommodation, such as: its efforts to indiv=
idually assess the employee and locate suitable work; the types of jobs tha=
t are available in the workplace and how they may be reconfigured if necess=
ary; the rationale for and application of any policies relied upon (such as=
seniority and other union concerns); and factors related to undue hardship=
, such as budgetary and safety constraints.

Case Name: Kapp v. The Queen
Jurisdiction: Federal
Court: Supreme Court of Canada
Panel: Chief Justice Beverley McLachlin, Justices Michel Bastarache, Ian Bi=
nnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Cha=
rron, and Marshall Rothstein
Date: June 27, 2008
Citation: [2008] S.C.J. No. 42 (QL)
Full Text: http://onlinedb.lancasterhouse.com/images/up-SCC_Kapp.pdf



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an style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'>May 27, 2009<= /span>		"Arial","sans-serif"'>Issue No. 120
<= span style=3D'font-size:10.0pt;font-family:"Arial","sans-serif";color:black'>&= #8212; CONTENT —
f"'>DENYING SEVERANCE PAY TO NON-ACTIVE AND DISABLED EMPLOYEES IS NOT DISCRIMINATORY, B.C. COURT OF APPEAL RULES "sans-serif"'>Seven years after Interfor partially closed mill operations in British Columbia= , the B.C. Court of Appeal was required to consider whether the agreement negotiated between the employer and the union for severance pay violated = the style=3D'font-family:"Arial","sans-serif"'>Human Rights Code. >The negotiated severance applied to those who lost their jobs due to the mill= 's partial closure, but did not extend to disabled and non-active employees.= The B.C. Court of Appeal ruled that the terms of the agreement made a permiss= ible distinction, and did not result in prohibited discrimination. #A">Details below. f"'>HUMAN DIGNITY IS NOT AN ADDITIONAL TEST TO BE MET IN ESTABLISHING DISCRIMINATIO= N UNDER THE ily: "Arial","sans-serif"'>CHARTERsize: 10.0pt;font-family:"Arial","sans-serif"'>, SUPREME COURT CLARIFIES= "sans-serif"'>In a decision that has implications for employment-related human rights complaints, the Supreme Court of Canada declared that its decision in > style=3D'font-family:"Arial","sans-serif"'>Law did not establ= ish an additional "human dignity" test as a hurdle to be crossed in establishing claims of discrimination under s.15 of the style=3D'font-family:"Arial","sans-serif"'>Charter. Rather, i= ts discussion of human dignity in that case was meant to be a "philosophical enhancement" of the principles of substantive discrimination that ha= ve defined the Court's s.15 jurisprudence on discrimination. Specifically, t= he Court explained, the four factors identified in amily: "Arial","sans-serif"'>Law relate to the two bases of substant= ive discrimination, namely (1) perpetuating prejudice or disadvantage; or (2) stereotyping. Pointing out that human dignity lies at the core of all rig= hts and freedoms guaranteed by the ns-serif"'>Charter, the Court directed s.15 claimants to the principles of substantive discrimination first set out in the ","sans-serif"'>Andrews case. Details below.
<= span style=3D'font-size:10.0pt;font-family:"Arial","sans-serif";color:black'>&= #8212; DETAILED REPORTS —
mily:"Arial","sans-serif"'>DENYING SEVERANCE PAY TO NON-ACTIVE AND DISABLED EMPLOYEES IS NOT DISCRIMINATORY, B.C. COURT OF APPEAL RULES f"'>The Facts: The partial closure of British Columbia's International Forest Products Ltd. ("Interfor") took place in August 2001, following which only so= me of the original employees were required. The company and its union negoti= ated an arrangement under which the most senior employees in the discontinued operations had the option of remaining employed in the smaller operation,= or of receiving a voluntary severance package. Workers who had insufficient seniority to bump into jobs at the smaller operation were also entitled t= o severance pay. The situation was more complicated in the case of non-active employees. On th= e one hand, they were treated like their actively employed co-workers if th= ey returned to active employment. On the other hand, while non-active disabl= ed employees who did not return to work still received workers' compensation= , short-term disability, or long-term disability benefits, they were not entitled to severance pay under the negotiated agreement. :p> Disa= bled employees who did not receive a severance payment filed a human rights complaint under B.C.'s "'>Human Rights Code, alleging that the agreement discriminated agains= t non-active workers "[b]y refusing to offer the severance payment to those employees off work due to disability...." In a decision dated April 11, 2006, the B.C. Human Rights Tribunal held that denying severanc= e pay – an earned benefit based on length of service – to a dis= abled employee for the sole reason that (s)he was not actively employed due to disabilit= y amounted to prohibited discrimination: see Lancaster's style=3D'font-family:"Arial","sans-serif"'>Disability & Accommodation E-Bulletin, May 8, 2006, Issue No. 66. The Tribunal found adverse treatment because only those employees who were ab= sent from their jobs due to a disability were denied the option of receiving severance. It found that the partial closure had an impact on the complainants for four reasons: (1) = those complainants without seniority or the required level of competency lost a= ll possibility of future employment with Interfor; (2) the complainants faced reduced opportunities for accommodation by Interfor that might have allowed them to return to work; (3) under the agreement between Interfor and the union, so long as they remained disabled, the complainants lost the investment of their able-bod= ied years with Interfor; and (4) the term "active employment," as used in the agreement, was inherently discriminatory and would impact on the dignity of the complainants. The Tribunal concluded that "all the indicia of discrimination are prese= nt in this case. In order for an employee to enjoy severance, a benefit tied= to years of service to an employer, that employee was required to be able-bodied." The employer challenged that decision in the B.C. Supreme Court. However, the B.C. Supreme Court rejected the employer's petition on February 13, 2007:= see Lancaster's Disabili= ty & Accommodation E-Bulletin, May 16, 2007, Issue No. 88. T= he employer further appealed this ruling to the B.C. Court of Appeal.= f"'>The Arguments: At t= he Court of Appeal, the employer argued that the lower court had erred by: (= a) concluding that the purpose of the settlement was to provide an earned benefit to employees based on length of service; and (b) finding that a <= em> style=3D'font-family:"Arial","sans-serif"'>prima facie case o= f discrimination had been established. [> style=3D'font-family:"Arial","sans-serif"'>Editors' Note: The arguments of the B.C. Human Rights Commission and the original complainan= ts were not set out.] f"'>The Decision: Writ= ing for a three-member panel of the B.C. Court of Appeal, Justice Richard Low allowed the employer's appeal, finding that no mily: "Arial","sans-serif"'>prima facie case of discrimination had = been established. The = appeal court considered the impact of two Supreme Court of Canada decisions deal= ing with discrimination which were not considered by either the Human Rights Tribunal or the lower court. Firs= t, Low referred to the decision in serif"'>Law Society of British Columbia v. Andrews, [1989] S.C.J. No. 6 (= QL): see Lancaster's Cana= dian Labour & Employment Law Journal, Volume 13, No. 3. In tha= t case, the Supreme Court declared that "every difference in treatment between individuals under the law will not necessarily result in inequality...." Furthermore, the Court defined discrimination as follows: [D]i= scrimination may be described as a distinction, whether intentional or not but based o= n grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages o= n such individual or group not imposed on others, or which withholds or lim= its access to opportunities, benefits, and advantages available to other memb= ers of society. The = Court also held in Andrews= that distinctions between individuals based on their individual merits and capacities,n> rather than their association with a groupily: "Arial","sans-serif"'>, will rarely be classed as discriminatory. Seco= nd, in McGill <= em> style=3D'font-family:"Arial","sans-serif"'>University Health Centre (Mont= real General Hospital) v. Syndicat des employ=E9s de l`H=F4pital g=E9n=E9ral d= e Montr=E9al, [2007] S.C.J. No. 4 (QL), the Supreme Court stated the following regardin= g the difference between a permissible distinction and prohibited discrimination: = Not every distinction is discriminatory. It is not enough to impugn an employ= er's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership does not, without more, guarantee access to a human rights remedy.-size: 10.0pt;font-family:"Arial","sans-serif"'> It is the link between that gro= up membership and the arbitrariness of the disadvantaging criterion or condu= ct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden. [emphasis= in original] In h= is application of these principles to the case at bar, Justice Low was particularly persuaded by what he considered to be a pivotal finding of f= act, i.e.: [T]h= e [non-active disabled employees] were not at all affected by the partial closure. Afte= r the closure occurred, each of the respondents (unlike those among their fellow employees who did not get replacement jobs) continued to be in the employ of Interfor while receiving statutory workers' compensation or contractual disability benefits. Had they become able to return to work, = they would have either continued to work for Interfor by obtaining a replaceme= nt job or they would have received severance pay in accordance with the term= s of the agreement. Just= ice Low acknowledged that the employment of the non-active disabled workers eventually ended, but he considered that "the termination of their employment was a product of the terms of the collective agreement –= retirement or unacceptable absenteeism. The respondents attacked neither of those contractual provisions under the sans-serif"'>Code." The parties agreed that the purpose of the agreement between Interfor and the union was to "'provide severance pay to those employees who would lo= se their employment due= to the partial closure." [emphasis in original] In light of this intention, and given the fact that none of the non-active workers lo= st their employment due to the partial closure of the plant, Low concluded t= hat the denial of the severance payment to those who did not fit Interfor's eligibility requirement of active employment was not discriminatory. Rath= er, this requirement was a permissible distinction. Acco= rding to Low, the evidence supported the following conclusion:> [T]h= e agreement contained ... a fair and commercially-sensible distinction betw= een the respondents and active employees on the basis of availability for wor= k. It was clearly not a distinction based upon physical or mental disability= . The respondents did not receive severance pay because they did not become available for work before retirement or before Interfor invoked the absenteeism clause in the collective agreement. They suffered no disadvan= tage under the agreement between Interfor and the union.... = In t= he result, the Court quashed the decision of the Human Rights Tribunal.n> f"'>Comment: Just= ice Low held that a prim= a facie case of discrimination had not been established in the present case: "The agreement caused no negative impact on the respondents and the distinction was not discriminatory on a proper application of Andre= ws." Howe= ver, assuming that the application of sans-serif"'>Andrews is appropriate here, it can be argued that a ly: "Arial","sans-serif"'>prima facie case of disability-based discrimination was in fact made out in this case. First, non-active disab= led employees were deprived of the offer of a severance payment which their actively-employed colleagues received due to their "unavailability t= o work." While Low maintained that this distinction was unrelated to t= he prohibited ground of disability, it can be argued that the requirement of being availablen> for work in these circumstances is really a euphemism for being sufficien= tly style=3D'font-family:"Arial","sans-serif"'>able-bodied to wor= k. Seco= nd, the plant closure had a detrimental impact on these non-active disabled employees. While they admittedly remained in receipt of benefits, the Tribunal found that they suffered the following negative effects:<= o:p> (1) = those complainants without seniority or the required level of competency lost a= ll possibility of future employment with Interfor; (2) the complainants faced reduced opportunities for accommodation by Interfor that might have allowed them to return to work; [and] (3) under the agreement between Interfor and the union, as long as they remained disabled, the complainants lost the investment of their able-bod= ied years with Interfor. The = Court of Appeal, however, gave short shrift to the impact of the plant closure = on Interfor's non-active disabled employees, even though, it could be argued= , this resulted in adverse treatment of these employees on the basis of a prohibited ground. It is telling that, while the B.C. Human Rights Tribun= al relied on Ontario Nu= rses' Assn. v. Mount Sinai Hospital (2004), 69 O.R (3d) 267 [review= ed in Lancaster's Human Rights Reporter, July/August, 2005], which struck down a legislative provision that denied severance pay to disabled employees as violative of the Cha= rter of Rights, the B.C. Court of Appeal, in its reasons, did not address that decision. f"'>Case Name:"sans-serif"'> International Forest Products Ltd. v. The British Columbia Human Rights Tribunal, Sandhu and Others >Jurisdiction: -serif"'>British Columbia Court: =strong>British Columbia Court of Appeal Judges: <= /strong>Richard Low, Mary Saunders, Peter Lowry Date: trong>May 9, 2008 Citation:= [2008] B.C.J. No. 844 (QL) Full Text: n> href=3D"http://onlinedb.lancasterhouse.com/images/up-BCCA_Sandhu.pdf" target=3D"_blank">http://onlinedb.lancasterhouse.com/images/up-BCCA_Sandh= u.pdf
"sans-serif"'>
mily:"Arial","sans-serif"'>HUMAN DIGNITY IS NOT AN ADDITIONAL TEST TO BE MET IN ESTABLISHING DISCRIMINATIO= N UNDER THE ily: "Arial","sans-serif"'>CHARTERsize: 10.0pt;font-family:"Arial","sans-serif"'>, SUPREME COURT CLARIFIES= f"'>The Facts: In 1= 992 the federal government introduced its "Aboriginal Fisheries Strategy" (the AFS or "strategy") to enhance aboriginal involvement in the commercial fishery. A key component of the strategy wa= s the introduction of pilot sales programs, one of which resulted in the issuance of a communal fishing licence to three designated bands. Granted pursuant to the Abor= iginal Communal Fishing Licences Regulations ( style=3D'font-family:"Arial","sans-serif"'>ACFLR), the licenc= e permitted individuals designated by the bands the exclusive right to fish= for sockeye salmon at the mouth of the Fraser River for a 24-hour period on August 19, 1998, and to use the catch for food, social, and ceremonial purposes as well as for sale. The appellants, a group of commercial fishers who were excluded from the fish= ery for the 24-hour period covered by the communal fishing licence, staged a protest for the purpose of bringing a constitutional challenge. When they were charged with fishing at a prohibited time, the appellants sought declarations that the communal fishing licence, the style=3D'font-family:"Arial","sans-serif"'>ACFLR and related regulations, as well as the AFS, were unconstitutional.= Just= ice William Kitchen of the British Columbia Provincial Court stayed the charg= es on the basis that the appellants' equality rights under s.15(1) of the m> style=3D'font-family:"Arial","sans-serif"'>Charter were breac= hed by the communal fishing licence and that the violation could not be justifie= d under s.1, which provides that the rights and freedoms set out in the > style=3D'font-family:"Arial","sans-serif"'>Charter are "subject ... to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (See [2003= ] B.C.J No. 1772 (QL).) The government's appeal was successful. Chief Justice Donald Brenner of the B= .C. Superior Court determined that the pilot sales program was not discrimina= tory in purpose or effect because it did not promote or perpetuate the view th= at the appellants were less capable or worthy of recognition or value as hum= an beings or as members of Canadian society (2004 BCSC 958). He lifted the s= tay and entered convictions against the appellants. That decision was upheld = by a five-member panel of the B.C. Court of Appeal (2006 BCCA 277) and the cas= e went to the Supreme Court of Canada in December 2007. <= /p> f"'>The ","sans-serif"'>Charter style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'> Equality Provisions: Sect= ion 15(1) provides that "[e]very individual is equal before and under th= e law and has the right to the equal protection and equal benefit of the la= w without discrimination and, in particular, without discrimination based o= n race...." Sect= ion 15(2) states that "[s]ubsection (1) does not preclude any law, progr= am or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantage= d because of race...." f"'>The Arguments: The appellants argued that the communal fishing licence discriminated against them on the basis of race, contrary to s.15(1) of the style=3D'font-family:"Arial","sans-serif"'>Charter. The gover= nment submitted that the program was ameliorative and therefore protected from = a claim of discrimination by operation of s.15(2). f"'>The Decision: The Supreme Court of Canada unanimously dismissed the appeal.p> Writ= ing on behalf of eight members of the Court, Chief Justice Beverley McLachlin an= d Justice Rosalie Abella reviewed the principles that have defined s.15 jurisprudence since the Supreme Court first examined the issue almost 20 years previously. In >Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, Just= ice William McIntyre declared that not every distinction is discriminatory, a= nd that the notion of formal equality, i.e. treating "likes" alike= , may in fact produce inequality because of the "infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law." The focus, he declared, must therefore be on the effect of the law on the individual or group concerned, such that the tes= t for establishing discrimination contrary to s.15 involves a two-step analysis: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? Alth= ough a decade later the Court's judgment in l","sans-serif"'>Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, suggested that discrimination should be defined in terms of t= he impact of the law or program on the "human dignity" of members = of the claimant group, the test did not change, the judges declared. While <= em> style=3D'font-family:"Arial","sans-serif"'>Law identified fou= r contextual factors by which to measure the impact on human dignity, the m= ajority noted, each of those related to the two primary indicators of discriminat= ion as set out in Andrew= s: the perpetuation of disadvantage and stereotyping. Specifically, the Cour= t pointed out that the first and fourth al","sans-serif"'>Law factors – pre-existing disadvantage and the nature of the interest = affected – go to perpetuation of disadvantage and prejudice. The second style=3D'font-family:"Arial","sans-serif"'>Law factor, the de= gree of correspondence between the differential treatment and the claimant gro= up's reality, deals with stereotyping. Lastly, the ameliorative purpose or eff= ect of a law or program (the third ns-serif"'>Law factor) was noted to be relevant to the application of s.15(2) as well as possibly going to the question under s.15(1) of whether the effect of the= law is to perpetuate disadvantage. The Court summarized the impact of an style=3D'font-family:"Arial","sans-serif"'>Law on the s.15 m> style=3D'font-family:"Arial","sans-serif"'>Charter jurisprude= nce as follows: View= ed in this way, Law= does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s.15 set out in pan style=3D'font-family:"Arial","sans-serif"'>Andrews and develo= ped in numerous subsequent decisions. The factors cited in style=3D'font-family:"Arial","sans-serif"'>Law should not be = read literally as if they were legislative dispositions, but as a way of focus= sing on the central concern of s.15 identified in ly: "Arial","sans-serif"'>Andrews – combatting discriminati= on, defined in terms of perpetuating disadvantage and stereotyping.... The central purpose of combatting discrimination, as discussed, underlies both s.15(1= ) and s.15(2). Under s.15(1), the focus is on y: "Arial","sans-serif"'>preventing governments from making distinctions based on the enumerated or analogous grounds that have the effect of perpetuating group disadvantage and prejudice; or impose disadvantage on the basis of stereotyping. Under s.15(2), the focus is on= style=3D'font-family:"Arial","sans-serif"'>enabling governmen= ts to pro-actively combat existing discrimination through affirmative measures.= With= this background in mind, the Court considered the interplay between s.15(1) an= d 15(2). While previous decisions on these subsections had considered wheth= er the latter was to be treated as an interpretive aid to the former, or mor= e properly understood as an exception to the prohibition against discrimina= tory laws, the Court preferred an approach which treated the provisions as confirmatory of one another. As stated by Professor Peter Hogg in an style=3D'font-family:"Arial","sans-serif"'>Constitutional Law of Canadaspan> (5th ed. 2007): "Under a substantive definition of equality, differe= nt treatment in the service of equity for disadvantaged groups is an express= ion of equality, not an exception to it." In t= he result, the Court established the following analytical framework: "O= nce the s.15 claimant has shown a distinction made on an enumerated or analog= ous ground, it is open to the government to show that the impugned law, progr= am or activity is ameliorative and, thus, constitutional. This approach has = the advantage of avoiding the symbolic problem of finding a program discriminatory before 'saving' it as ameliorative, while also giving independent force to a provision that has been written as distinct and separate from s.15(1). Should the government fail to demonstrate that its program falls under s.15(2), the program must then receive full scrutiny under s.15(1) to determine whether its impact is discriminatory." Wh= ile allowing for the possibility of future refinement, the Court formulated a two-part test under s.15(2): the law or program must (a) have a remedial purpose as one of its objectives; and (b) target a disadvantaged group identified by the enumerated or analogous grounds. Appl= ying these principles, the judges accepted that the communal fishing licence imposed a distinction based on race, but determined that the government program at issue was protected by s.15(2) and did not violate the equalit= y guarantee. "The disadvantage of aboriginal people is indisputable,&q= uot; the majority stated, and the program's objective was to promote band self-sufficiency by "redress[ing] the social and economic disadvanta= ge of the targeted bands," which in this case involved the creation of economic opportunities. Just= ice Michel Bastarache concurred with the majority in the result, but did so n= ot on the basis of s.15(2), but s.25 of the Arial","sans-serif"'>Charter which states: "The guarantee in this "Arial","sans-serif"'>Charter of certain rights and freedoms shall not be construed so as to abrogate o= r derogate from any aboriginal, treaty or other rights or freedoms that per= tain to the aboriginal peoples of Canada." In Bastarache's view, s.25 ser= ved "the purpose of protecting the rights of aboriginal peoples where th= e application of the C= harter protections for individuals would diminish the distinctive, collective an= d cultural identity of an aboriginal group...." In short, section 25 applied to shield from "'>Charter scrutiny "legislation that distinguishes between aboriginal and non-aboriginal people in order to protect interests associated with aboriginal culture, territory, sovereignty or the treaty process."span> f"'>Comment: The Supreme Court in this case realized that its discussion of human dignity = in style=3D'font-family:"Arial","sans-serif"'>Law created diffic= ulties when lower courts began treating it as a new legal test "rather than= the philosophical enhancement it was intended to be." = Alth= ough style=3D'font-family:"Arial","sans-serif"'>Kapp definitively = lays to rest the notion of a separate "human dignity test" or "= style=3D'font-family:"Arial","sans-serif"'>Law analysis" requiring an examination of each of the four contextual factors identifie= d in that case, nothing in the decision would appear to shed light on the ques= tion of whether the requirements of discrimination under style=3D'font-family:"Arial","sans-serif"'>Charter jurisprude= nce apply equally in the human rights context. In other words, is a human rig= hts complainant required to prove, as part of a y: "Arial","sans-serif"'>prima facie case, that s/he suffered (1= ) differential treatment, (2) on the basis of a prohibited ground, (3) in a manner that perpetuates disadvantage or is based on stereotype? The so-ca= lled "traditional" human rights analysis does not include the third step, which is the critical element of substantive discrimination as discussed in Andrews= and reaffirmed in Ka= pp. The current debate in human rights jurisprudence is not limited to whether an= d when a "Lawan> analysis" applies "'>per se, but engages this broader question of whether substantive discrimination must be established as part of the -family: "Arial","sans-serif"'>prima facie case. For example in pan style=3D'font-family:"Arial","sans-serif"'>Baum v. Calgary (City)<= /em>, [2008] A.J. No. 1479 (QL), Justice Kristine Eidsvik of the Alberta Court = of Queen's Bench held that the removal of a disabled worker from his millwri= ght position did not amount to erif"'>prima facie discrimination because it was based on his actual physi= cal abilities and not stereotypes and arbitrary assumptions about the disable= d. Although the judge did not expressly refer to "s.15 style=3D'font-family:"Arial","sans-serif"'>Charter jurisprudence" or the "sans-serif"'>Law analysis," the element of stereotype clearly derives from the defini= tion of substantive discrimination as set out in y: "Arial","sans-serif"'>Andrews. Whil= e the approach adopted in = Baum is not widespread, it finds support in the concurring minority opinion of Justice Rosalie Abella in rif"'>McGill University Health Centre (Montreal General Hospital) v. Syndicat des empl= oyes de L'H=F4pital General de Montreal, [2007] 1 S.C.R. 161 [revi= ewed in Lancaster's Disab= ility & Accommodation E-Bulletin, March 1, 2007, Issue No. 84].= In that case, the Court unanimously restored an arbitrator's ruling that the employer did not violate human rights legislation when it terminated a disabled employee who had not worked for three years and had no reasonabl= e prospect for recovery. Six members of the Court ruled that, although the termination was prim= a facie discriminatory because it was due to the employee's disability, the hospital discharged its duty to accommodate to the point = of undue hardship. On behalf of three judges, Justice Abella held that the question of accommodation did not arise because there was no style=3D'font-family:"Arial","sans-serif"'>prima facie discrimination. Abella reasoned that "the essence of discrimination = is in the arbitrariness of its negative impact," and that preventing discrimination "is achieved by preventing the exclusion of individua= ls from opportunities and amenities that are based not on their actual abilities, but on attributed ones.... It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct" that the claimant bears the initial onus of establishing. <= /span> Cons= equently, notwithstanding Kapp= 's clarification of the discrimination analysis under the style=3D'font-family:"Arial","sans-serif"'>Charter, there is = likely to remain uncertainty as to whether and when – if ever – a re= quirement of substantive discrimination should be imported into the human rights <= span style=3D'font-family:"Arial","sans-serif"'>prima facie discrimination analysis. Indeed, at least one post- style=3D'font-family:"Arial","sans-serif"'>Kapp tribunal deci= sion bears this out. In M= iller v. British Columbia Teachers' Federation, [2009] B.C.H.R.T.D.= No. 34 (QL), Tribunal member Lindsay Lyster specifically referred to n style=3D'font-family:"Arial","sans-serif"'>Kapp and declared = that substantive discrimination is the test for a ly: "Arial","sans-serif"'>prima facie case in style=3D'font-family:"Arial","sans-serif"'>all human rights complaints. She allowed, however, for a difference in the way that test w= ould play out in different types of claims, in a manner that is reminiscent of= the "government overtones" approach that developed with respect to = the application of Lawspan> (prior to the release of if"'>Kapp): "In many cases, >prima facie discrimination in [the substantive] sense will be readi= ly established on proof of the existence of adverse treatment related to a ground prohibited under the serif"'>Code. In others, particularly those where competing valid public policies or va= lues are in issue, something more may be required, and the style=3D'font-family:"Arial","sans-serif"'>Law factors, and t= he focus they bring on human dignity, may be of assistance in deciding wheth= er style=3D'font-family:"Arial","sans-serif"'>prima facie discrimination has been established." Undo= ubtedly human rights complainants deserve to know whether they have the additiona= l burden – beyond showing adverse treatment related to a prohibited g= round – of proving that the employer's conduct was arbitrary and based on assumption= s and stereotypes; or whether this factor remains part of the accommodation analysis which focuses on conducting an individualized assessment of the employee's situation and devising an appropriate response on that basis. = The difference is one of the shifting onus of proof which, as stated in <= span style=3D'font-family:"Arial","sans-serif"'>Ontario (Human Rights Commissi= on) v. Simpsons-Sears Ltdl","sans-serif"'>., [1985] 2 S.C.R. 536 (O'Malley), reflects the fact that it is the employer= who possesses the information relevant to accommodation, such as: its efforts= to individually assess the employee and locate suitable work; the types of j= obs that are available in the workplace and how they may be reconfigured if necessary; the rationale for and application of any policies relied upon (such as seniority and other union concerns); and factors related to undu= e hardship, such as budgetary and safety constraints. f"'>Case Name:"sans-serif"'> Kapp v. The Queenpan> Jurisdiction= : Federal Court: strong>Supreme Court of Canada Panel: strong>Chief Justice Beverley McLachlin, Justices Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron, and Marshall Rothstein Date: trong>June 27, 2008 Citation: >[2008] S.C.J. No. 42 (QL) Full Text:> target=3D"_blank">http://onlinedb.lancasterhouse.com/images/up-SCC_Kapp.p= df
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