By: Cédric P. Lamarche

The Saskatchewan government has recently announced its plan to dissolve the province’s Human Rights Tribunal.  According to Saskatchewan’s Justice Minister, Don Morgan, the change could occur as early as spring of 2010 if it is streamlined as planned.

The Saskatchewan Human Rights Tribunal is an independent, quasi-judicial provincial body that has the mandate of adjudicating human rights complaints brought under the province’s Human Rights Code.  In a nutshell, the Tribunal conducts public hearings of human rights complaints that have been referred to the Tribunal by Saskatchewan’s Human Rights Commission.  At a tribunal hearing, the parties are provided with an opportunity to make submissions and adduce evidence to support their case.  At the conclusion of the hearing, the Tribunal issues a decision which is subject to appeal to the Queen’s Bench.

It should be noted that Saskatchewan’s Human Rights Tribunal is separate from Saskatchewan’s Human Rights Commission.  Both administrative bodies are completely independent, have different mandates and have distinct administrative processes.  The Commission’s role is to receive and investigate complaints.  In some cases, the Commission will refer complaints to the Tribunal for adjudication.

According to the proposed dissolution of the Tribunal, the Commission will refer human rights complaints directly to the Queen’s Bench for adjudication.  If implemented, the system would be unique to the province of Saskatchewan.

The decision stems from the governing party’s view that the Tribunal currently lacks judicial independence.  Reformists are quick to point out that the Tribunal does not have security of tenure, financial security and does not benefit from administrative independence.  They argue that members of the public cannot differentiate between the Commission and the Tribunal.  This perception, according to the Saskatchewan Party, has compromised the public’s confidence in the system and needs to be remedied.

In addition to the benefits derived from the possible enhanced perception of administrative independence, there are consequences that will surely result from the dissolution of the Tribunal.  The new system will result in the unnecessary expenditure of resources.  For example, under the new system it will be more costly to involve judges in the decision process as opposed to less-expensive administrative adjudicators.  Also, because the expertise of the members of the judiciary in the area of human rights is not comparable to that of the members of the Human Rights Tribunal, who are individuals selected on the basis of their expertise and interest in this discrete and specialized area of law, a specialized human rights section within the Queen’s Bench will have to be created in order to maintain public confidence in the system.  This, of course, will be accompanied with additional costs for taxpayers.  If implemented, the proposed change will also result in the elimination of an entire appeal layer.  Currently, the Tribunal’s decisions can be appealed to the Queen’s Bench.  This appeal option will no longer be available if the Queen’s Bench becomes the first place of hearing.  Accordingly, the elimination of this appeal option may have the consequence of dissuading individuals from pushing forward with their human rights complaints.

One must ponder whether enhancing the public’s perception of independence is required and whether it will outweigh the many costs associated with the dissolution of the Tribunal.  The Saskatchewan Party says yes.  However, the majority government’s political motivations behind the decision are suspect.  The proposed change comes shortly after a Tribunal decision that found that a marriage commissioner had discriminated against a same-sex couple by declining to marry them.  This decision is contrary to proposed legislation by the Saskatchewan government which would allow marriage commissioners to decline to perform wedding ceremonies for gay couples.  For obvious reasons, the Tribunal’s decision did not bode well with the governing center-right Saskatchewan Party.  Placing more control in the hands of government appointed judges would certainly aid in achieving “right-minded” results.

Whitten & Lublin LLP is a team of legal experts who provide practical advice and advocacy for workplace issues.

The Human Rights Tribunal of Ontario recently reported the decision in Maciel v. Fashion Coiffures, siding with the applicant who was terminated immediately following the announcement of her pregnancy. 

The press release by the Human Rights Legal Support Centre indicates that Vice Chair Naomi Overend noted Ms. Maciel's vulnerability in her decision by outlining that "She was young, just out of school, and coping with an unplanned pregnancy. This was to be her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing."

Follow this link to the Globe & Mail article on Ms. Maciel's ordeal.

A copy of the decision can be found by clicking on the link below.

Download Maciel v Fashion Coiffures doc

Whitten & Lublin is an employment law firm providing counsel to both employers and employees on a wide range of employment law issues.

The verdict is out: Human rights trump hair styles.

In November, 2007, Canadian entrepreneur, Sarah Desrosiers,
faced a legal battle after denying employment to Bushra Noah for wearing her
traditional headscarf and refusing to display her hair in Desrosier’s trendy London, England salon.

Desrosier claimed that she needed her employees to show off
their hairstyles to market her hair salon. After months of debating, the
employment tribunal panel has finally ruled that Desrosiers’ actions were
“indirect discrimination” against Noah.

The panel awarded Noah £4000 (the equivalent of about $8000
Cdn) for “injury to feeling” but dismissed her claims for direct religious
discrimination. The panel further stated that Desrosiers did not provide enough
evidence to demonstrate that a stylist with covered hair would have negatively
impacted her salon.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

On May 27, 2008 the British Columbia Human Rights Tribunal ruled in favour of BC Ferries with respect the the firing of transsexual employee, Deborah Magnone.

Deborah, who was previously known as Marshall John Magnone, claimed her termination was the result of rumours surrounding her 1984 sex-reassignment.

The Tribunal ruled differently. They cited two September, 2004 incidents as cause for termination. One of which resulted in a vessel being steered into a "hard-landing", potentially compromising the sea-worthiness of the vessel. In it’s ruling, the Tribunal stated that Ms. Magnone had "failed to establish that her transsexualism was a factor in her termination".

At the Tribunal, the burden of proof is for the complainant to make out a "Prima Facie" case, in other words, demonstrating initial merit.  If a prima facie case is made out, the burden then shifts to the respondent to show that discrimination did not occur. 

Click here for a link to the Tribunal’s decision.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Canadian entrepreneur Sarah Desrosiers, is facing a legal battle after she denied employment to Bushra Noah because Noah would not abandon her traditional headscarf and display her hair if hired to work in the salon.

Desrosiers’ London, England based Wedge Salon plans to battle Noah’s suit. The small business owner claims that salon workers should showcase their hair to market their ability and essentially, their product. Noah, who has previous experience in salons, feels her headscarf does not hinder her ability to preform salon duties.

In respect of Ontario law, the Ontario Human Rights Code protects employees from discrimiantion in employment.  As a result, they cannot be adversly treated or discriminated against based on a set of ‘grounds’ including race, nationality, religion etc.  Employers do have a legal defence available, however.  In the case of Desrosiers, she would have to demonstate that the requirement of the position, to not wear a headscarf, is a bone fide occupational requirement – or an essential component of the job.   

The matter is scheduled to be heard in Central London’s Employment Tribunal in the new year.

For more information, please see the original Toronto Star article here.

Daniel A. Lublin is a Toronto Employment Lawyer.  He can be reached at dan@toronto-employmentlawyer.com or through his Website www.toronto-employmentlawyer.com.