Dodging Precedent



July 28, 2011

It is already well known that the human rights tribunals take liberties with definitions to suit their own ends. For the most egregious example of this, I refer to a previous post that highlighted the OHRC’s approach

to definitions:

1) Definitions should be interpreted as broadly as possible when establishing that discrimination has taken place, and

2) Defences for discrimination should be interpreted as narrowly as possible.

So what happens when a superior court, whose precedents are binding on human rights tribunals, doesn’t appear to have received the memo?

Tribunals have been using the “family status” designation in human rights codes to force employers to accommodate all sorts of family obligations, even in some cases suggesting that employers should provide daycare to their employees. Can’t watch your kid’s baseball game during working hours? File a complaint. Refused in your demand to have your working hours modified to match your childcare arrangements? Launch a complaint. Want to take a few weeks off for a family vacations? You’d probably succeed with that too.

In the case of Heath Sciences Assn. of BC v. Campbell River and North Island Transition Society, BC’s court of appeal saw the potential for this sort of abuse of “family status” designation. Though they sided with the employee on this case, they spelled out clear definitions on what could be considered discrimination on the basis of family status:

In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me 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.

Human rights tribunals are normally bound by precedents such as these. Yet the BCHRT found a creative way around this definition in Cavanaugh vs Sea to Sky Hotel and Mojaher. They claim that the Court of Appeal’s definition is “not an exhaustive one” and is only be limited to a change in work conditions. In Cavanaugh, there was no change in work conditions – the employer was only requiring the employee to abide by the original agreed-upon work conditions to begin with. It doesn’t take a law degree to know that the definition in Cavanaugh should, if anything, be more restrictive, not less.

In addition, it could easily be argued that entering an employment contract constitutes a change in work conditions. Either way, the Tribunal’s redefinition is self-serving and undermines the authority of the Court of Appeal.

The Commissions and Tribunals have, in many cases, taken upon themselves to re-make society in their own image. One of the components of this re-made society is an expansive welfare state. Since they do not have the power to make the taxpayer pay for it, they instead use the means at their disposal – forcing employers to provide these services through human rights legislation.

This is not to say that Canada should or should not pursue an expansion of the welfare state – that is not the discussion here. Instead, such a debate should be held in Parliament and provincial legislatures, and not at a closeted conference of unelected bureaucrats.

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