Equality Law

Equality Law


I. Legislation

• Human Rights Code

• Occupational Health and Safety Act

• Workplace Safety and Insurance Act

II. General Information and Case Law

Aboriginal Rights

• R. v. Marshall; R. v. Bernard [2005] This is a leading Aboriginal rights decision from the Supreme Court of Canada determining the extent of constitutional protection for aboriginal practices. It narrowed the test from two earlier decisions and ruled that although treaty rights are not frozen in time, a claim to a modern treaty trading right must represent a logical evolution from a traditional trading activity at the time the treaty was made.

• Delgamuukw [1996] This landmark decision confirms the ongoing existence and nature of Aboriginal title. It also established new rules of evidence with respect to establishing title, as well as the significance of oral history and tradition.

• Sparrow [1990] This was the first Supreme Court consideration of the meaning of section 35 of the Constitution Act, 1982 that recognized and affirmed "the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada". The case imposed a requirement upon the Crown to justify any regulation that limits the exercise of Aboriginal rights.

• Guerin [1984] This case legally recognized the "trust-like" duty upon the federal government in its handling of matters for Aboriginal people. Now, the Crown-Indian/Aboriginal relationship is often characterized as an ongoing "fiduciary" responsibility.

• Lovelace v. Canada [1981] This international precedent-setting case involves a successful appeal to the Human Rights Committee of the United Nations. The United Nations found that Canada’s Indian Act provision which denied women married to non-Indian spouses equal access to, and enjoyment of, reserved lands (and not vice-versa) was discriminatory on the basis of sex. http://www.cajpe.org.pe/sistemasjuridicos/images/docs/instrumentos/su/lovelace.pdf

Psychological and Personal Harassment

General Info


• Workplace Violence and Harassment

• Workplace Violence and Harassment: Understanding the Law http://www.labour.gov.on.ca/english/hs/pubs/wpvh/index.php

• Bullying in the Workplace

OPSEU Brochure on Bullying and Psychological Harassment

Sample policy on Bullying and Psychological Harassment

CAAT Support EERC Research Paper on Bullying and Mobbing in the Workplace

Case Law

• Jubran [2005] In this case, a British Columbia School Board of Trustees was held responsible for the discrimination a young student subjected to years of bullying, insults and taunting. The Board failed to provide an educational environment that was free from discriminatory harassment and did not respond effectively to the discriminatory conduct. The school staff also pursued a disciplinary approach that was not effective and lacked resources to deal with the issues of harassment and discrimination. http://www.canlii.org/en/bc/bcca/doc/2005/2005bcca201/2005bcca201.html

• TTC Case [2004] In this case, veteran arbitrator Owen Shime found that that the collective agreement contained an “implied term” in the management rights clause requiring supervisors to ensure employees’ physical and psychological safety. Click here to download pdf.

• Parry Sound [2003] This leading case from the Supreme Court affirmed the principle that the substantive rights and obligations from employment-related statutes are implicit in every collective agreement. This leads to the conclusion that the violation of employment-related legislation, such as an employer’s statutory obligation to ensure a safe workplace, constitutes a violation of the collective agreement and is arbitrable. http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2075/index.do

• OC Transpo [2000] On April 6, 1999, a former employee of OC Transpo in Ottawa went on a shooting rampage that left four employees dead, then took his own life. The killer had himself been the victim of workplace harassment. A coroner's inquest into the killing of four workers at OC Transpo ended with 77 recommendations to prevent harassment and violence at work. The jury's number one recommendation calls for the federal government and the province to make it mandatory for employers to develop and implement policies dealing with workplace violence. More than a third of the proposals are aimed at changing management style at the bus company.

Racial Equality

General Info

• Racial Harassment: Your Rights and Responsibilities

Case Law

• McKinnon v. Ontario (Min. Of Correctional Services) (No.3) [1998] This is a precedent setting case in terms of systemic racial discrimination and the meaning of a “poisoned work environment”. In the initial decision in 1998, the Board found that there were several factors contributing to a poisoned work environment and that management at every level failed to seriously investigate allegations of racial discrimination or to take measures to avoid their repetition.

• National Capital Alliance on Race Relations (NCARR) v. Health and Welfare Canada [1997] This was the first successful human rights case of systemic racial discrimination in Canada, and one which also included an effective employment equity remedy. The resulting decision, focusing on barriers to promotion of visible minorities to top management positions, the so-called glass ceiling phenomenon and was particularly important because it underscored how hidden and obscure systemic racial discrimination may be.

• Naraine v. Ford Motor Co. [1996] This was a case in which Ford was found to have discriminated against Naraine. It had neither acknowledged nor remedied an atmosphere of racial harassment/derogation and, when dismissing Naraine because of temper/outbursts, it did not take into account that these outbursts were the result of the adverse effect of a poisoned workplace atmosphere. The harassment, which took the form of graffiti, racial slurs and other incidents, was seen to have constituted conditions of employment and were thus a violation of the Ontario Human Rights Code.

Religious Rights

General Info

• Religion and Human Rights

Case Law

• Chambly v. Bergevin, [1994] This case involved the differential compensation for Jewish teachers at public school who take unpaid leaves of absence for holy days as compared to Christian teachers who get paid "holidays" according to a work calendar based historically on the Christian faith. The Court held that the school board's leave policy had an adverse effect on Jewish teachers despite the secularized nature of Good Friday and Christmas. The Court concluded religious leave should have been made available as a “special-purpose paid-leave” under the collective agreement, as it did not cause undue hardship.

• Bhinder v. Canadian National Railway Co [1985] In this case, a Sikh employee’s religious obligation to wear turban was in conflict with employer's requirement of wearing hard hats. The Supreme Court held that the hard hat requirement was a reasonable and bona fide requirement aimed at protecting the health of the worker.

• See also Simpson, Renaud and Central Alberta Dairy Pool below

Women’s Equality

General Info

• Sexual Harassment: Your Rights And Responsibilities

• Ontario Women’s Justice Network: Legal Info

Case Law

• R. v. Darrach [2000] This s a leading Supreme Court case that upheld the validity of the criminal code's “Rape Shield Law” that limits intrusions into records and evidence related to a complainant’s sexual history. The Court held that in general, personal records of complainants in sexual assault trials should be private and the accused must meet a high standard of proof in order to gain access to them. http://www.attorneygeneral.jus.gov.on.ca/inquiries/cornwall/en/hearings/exhibits/Wendy_Harvey/pdf/52_Darrach_SCC.pdf

• R. v. Ewanchuk [1999] This is a leading Supreme Court of Canada case concerning “consent” in the context of sexual assault. In defining consent, the Court held that there was no defence of “implied consent”; that consent is to be determined from the perspective of the mind of the complainant; that there are many actions and words that can convey a lack of consent not merely “no” and that the responsibility rests with the person seeking the sexual contact to actively and positively determine that there is consent.

• R. v. Lavallée [1990] This Supreme Court ushered in the legal recognition of “Battered Woman Syndrome”. That is, that evidence of years of abuse and its psychological impact is relevant to the question of what constitutes self-defence.

• Janzen v. Platy Enterprises Ltd [1989] Sexual harassment, which is included in the legal concept of sex-based discrimination, was defined in this case. The general definition was framed as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment.”

• Brooks v. Canada Safeway Ltd [1989] In this Supreme Court Case, there was finally a recognition by the Court that discrimination based on pregnancy is discrimination based on sex.

• Action Travail Des Femmes v. Canadian National [1987] This case led to the imposition for the first time in Canada of an affirmative action program. It was the result of a complaint of systemic discrimination based on gender. The Supreme Court of Canada upheld an order of a Tribunal to hire one woman for every four new hires into unskilled and blue-collar jobs.

Same-Sex and LGBTTQ Rights

General Information

• Sexual Orientation: Your Rights & Responsibilities

Case Law

• Kimberly Nixon v. Vancouver Rape Relief [2005] This B.C. Court of Appeal decision is the highest level of court in Canada ever to rule on a case of discrimination against a transsexual. Here, the B.C. Court of Appeal held that the exclusion of a transsexual woman as a volunteer was permitted under the B.C. Human Rights Code “special groups exemption”. The Court held that the exemption permitted a women’s service organization to discriminate against a sub-group of women, namely transsexual women, where the discrimination is meant to serve a specific group and is based on good faith.

• M v. H. [1999] This was a challenge against the definition of "spouse" that had the effect of extending the right to support to members of opposite-sex couples but not to same-sex couples. The challenge was successful in overturning the heterosexual definition of spouse.

• Egan [1995] This case was the first time where a majority of the Supreme Court recognized that sexual orientation is a prohibited ground of discrimination under Section 15 of the Charter of Rights.

• A.G. v. Mossop [1989] This was the first decision of the Supreme Court of Canada to consider equality rights that involved the intersection between family status and sexual orientation. The case is also significant because it contains a famous dissenting judgment arguing for the need for an evolving model of the “family".

• Also see Vriend below

The concept and meaning of Discrimination

Case Law

• Law v. Canada [1999] Aside from summarizing ten years of equality case law, this case emphasizes the role of human dignity in any equality rights analysis. The "Law" framework has been consistently followed by the courts since this decision.

• Corbiere [1999] This case is important for its analysis of when a basis for differential treatment constitutes an "analogous" prohibited ground of discrimination. It is also important for its discussion of discrimination in the Aboriginal context.

• Vriend [1999] The case is important because it includes a discussion of how legislation which is "underinclusive" may violate equality rights by imposing a discriminatory burden on the members of society which it excludes. The Supreme Court of Canada held that the exclusion of sexual orientation from was discriminatory.

• Eldridge [1997] This case is important for its explanation of the principle that equality for all does not necessarily mean identical treatment for all. It also highlighted the obligation, under the Charter and human rights legislation, of governments, employers and service providers to consider the need to eliminate intentional and unintentional barriers to the full participation of persons with disabilities in Canadian society.

• Miron v. Trudel [1995] This case was the first in which the Court recognized marital status as a prohibited ground of discrimination under Section 15 of the Charter of Rights.

• Andrews v. Law Society of British Columbia [1989] This case sets out the authoritative definition of “discrimination” in the law. The Court's approach in Andrews contributed to ensuring that equality rights are interpreted broadly and not formalistically, to give effect to the remedial anti-discrimination purpose for which equality rights were enacted.

• Simpson v. O’Malley [1985] Here, the Court first acknowledged the existence of indirect discrimination. However, this distinction between indirect and direct discrimination was later abandoned in favour of the Meiorin approach.

Duty to Accommodate

General Info

• Duty to Accommodate – Frequently Asked Questions

• Human Rights and the Family in Ontario

• Disability and Duty to Accommodate

• Mental Disabilities and the Duty to Accommodate

• Medical Information in the Accommodation Process

Case Law 

• Renaud [1992] This case sets out the important principle that the duty to accommodate is shared by all parties: the employer, the employee and the union.

• Central Alberta Dairy Pool [1990] This important duty to accommodate case sets out a list of factors the decision-maker (an arbitrator or judge) may consider when determining whether or not the employer met the “undue hardship” test.

• Meiorin [1999] Before Meiorin, human rights violations were treated in one of two ways; either as direct discrimination or as adverse effects discrimination. This was a widely criticized approach because it had the effect of legitimizing systemic discrimination. With the Meiorin case, this bifurcated approach was abandoned and a new 3-part individualized “duty to accommodate” analysis was fashioned.

Family and Marital Status

• Health Sciences Assn. v. Campbell River [2004] This is one of the leading cases that both defines and sets limits on the meaning of discrimination based on “family status”. The court stated that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a “serious interference” with a substantial parental or other family duty or obligation of the employee.  Click here to download pdf.

• B. v. A. [2002] This Supreme Court case broadened the definition and concept of “family status” protection. The Court ruled that the discrimination will be found where it is based on either the individual’s status of being in a child-parent type relationship or where the individual is discriminated against based on the particular identity of their spouse or family member.