Judicial Review Of Human Rights Cases – Recent Key Decisions

Prepared for the OBA 2013 Annual Human Rights Update

1. Introduction

   The Canadian courts have continued to shape our evolving human rights jurisprudence. This paper is intended to provide context for other presenters, with the goal being to survey certain key cases decided during 2012 and 2013. As this overview will hopefully demonstrate, the courts have continued to be quite engaged with the approach being followed by tribunals as they continue to address both procedural and substantive aspects of human rights cases.

2. Johnstone: The Reasonableness Standard and Purposive Approach to Discrimination Protections

   The recent decision of the Federal Court of Canada in Canada (Attorney General) v. Johnstone1 provides helpful guidance about the appropriate standard of review with respect to the decisions of Canadian human rights tribunals. While the Johnstone decision focused on the topic of discrimination on the basis of family status as provided for under the Canadian Human Rights Act, there are arguably a number of important concepts arising from the Federal Court's decision which are of more general application.

   The lengthy process of seeking redress which Fiona Ann Johnstone has been involved with dates back to 2004, when she sought accommodation with respect to her shift schedules while working for the Canadian Border Services Agency ("CBSA"). In essence, Johnstone, who was returning from work following a maternity leave, asked for a fixed shift schedule as opposed to the rotating schedule which other employees are generally assigned to. In conjunction with this request, Johnstone sought to be scheduled for a sufficient number of hours to be treated as full-time so that she would therefore be entitled to benefits and other opportunities for advancement. While the CBSA agreed to schedule Johnstone on a fixed shift basis, she was not given sufficient hours to qualify as a full-time employee. Before the matter was adjudicated by the Canadian Human Rights Tribunal, there was an initial round of judicial review and appeal based on how the Canadian Human Rights Commission decided at the screening stage that it would not refer the complaint to a hearing.2 Eventually, the Tribunal heard the matter and allowed Johnstone's human rights complaint.

   Standard of Review

   The findings of the Federal Court in the (second) Johnstone decision which dismissed the Attorney General of Canada's application for judicial review are consistent with the broad trend of deference by Canadian courts to the decisions of human rights tribunals. The Court confirmed that the relevant standards of review of tribunal decisions will continue to be guided by the Supreme Court of Canada's decision in Dunsmuir,3 which recognizes that certain matters will be reviewed to a standard of correctness, and others will be reviewed on the basis of reasonableness. In this regard, deference will continue to be generally appropriate where a tribunal is interpreting its home statute or the tribunal has developed a particular expertise.

   With respect specifically to decisions of the Canadian Human Rights Tribunal, the Court in Johnstone noted the important guidance provided by the decision in Mowat4, which affirms the reasonableness standard which applied to review of the Tribunal's determination on the issue of awarding costs. The Court proceeded to adopt similar reasoning with respect to the interpretation of the Canadian Human Rights Act5, finding that an interpretation of "family status" falls within those matters which are within the home statute of the Tribunal. Further, as the Tribunal was adjudicating within its own area of expertise on a question which did not relate to jurisdictional boundaries, the standard of review of reasonableness applied.

   Given that the review of the Tribunal's findings with respect to there being prima facie discrimination involves the application of the law to the particular facts of the case, the determination is one which is a question of mixed law and fact. Accordingly, following the framework from Dunsmuir, the Federal Court confirmed that the standard of reasonableness was thereby invoked. The Court proceeded to adopt the same reasoning with respect to the standard of review applicable to the Tribunal's decisions on remedies.

   Legal Test for Discrimination

   The appellant Attorney General of Canada also unsuccessfully attempted to argue that the Tribunal erred in considering Ms. Johnstone's complaint by not adopting the proper legal test for establishing a prima facie case of discrimination based on family status. The Court's rejection of this argument was founded on its application of the legal test articulated in O'Malley,6which holds as follows:

   A prima facie case in this context is one which covers the allegations made in which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent employer.

   Based on this framework, the Court upheld the Tribunal's determination that Ms. Johnstone had been subjected to discrimination.

   Outcome and Implications

   Requests by employees for accommodation both to include due consideration for relevant family obligations and childcare, and to expand the scope of the resulting duty of employers to accede to requests for flexibility, are potentially wide-ranging. One aspect which has perhaps not yet been fully considered is the specifics of how this decision may apply to other workplaces. In this regard, it is important to note that that the operations of the respondent employer, CBSA, are effectively staffed on a 24-hour, 7 day a week basis with a large number of employees, so the argument that "the work is not available" was untenable. In addition, Ms. Johnstone was able to proffer evidence before the Tribunal that other employee scheduling requests, including for religious accommodation or medical reasons, had been accommodated with solutions similar to what she had requested.

   A number of the broad statements by the Court in Johnstone are likely to be adopted at the federal and provincial tribunal level going forward. In particular, the case provides current confirmation that human rights legislation will continue to have quasi-constitutional status. In this regard, the legislation will continue to be considered in accordance with the stated purpose in the relevant statutes, with any interpretation issues being decided in a manner consistent with the stated objectives of the legislation, which include being remedial. The Johnstone decision also provides useful guidance on what, on a practical basis, a "reasonable" decision involves - the Tribunal's approach to the complaint involved a reasoned or considered approach that was based on the evidence before the Tribunal. Accordingly, the findings of discrimination were ones which were matters based on clear facts and the application of the Act to those facts.

   One aspect of the Johnstone decision which did involve success for the appellant related to one of the remedial orders of the Tribunal. In particular, the CBSA successfully challenged the remedy which required the employer to establish written policies satisfactory to Ms. Johnstone and the Canadian Human Rights Commission. The Federal Court held that although the Tribunal has broad remedial authority, there is no basis in the legislation to issue an order which provides that a person who has been subjected to discrimination is thereby entitled to have a right to participate in the development of remedial policies. As such, this specific item was found to have exceeded the Tribunal's bounds of jurisdiction. This shows a vivid example of a matter where a decision which is "incorrect" will be overturned regardless of the circumstances giving arise to the order.

3. Whatcott: Careful Scrutiny of What Reasonableness Means

   The scope of review of human rights decisions was closely examined by the Supreme Court of Canada in its decision in Whatcott.7 The underlying conduct which was the subject of the complaint which was judicially reviewed involved the distribution of flyers which contained content which was critical of homosexuals and four resulting complaints filed with the Saskatchewan Human Rights Commission. The complainants alleged that the flyers, which Mr. Whatcott had distributed in 2001 and 2002 on behalf of Christian Truth Activists, promoted hatred against individuals on the...