Category Archives: Constitutional Law

Family Status Discrimination: The Federal Court takes a stand on Childcare Issues for Workers

Canada’s Federal Court has recently issued two decisions finding a lack of consideration towards workers’ childare issues discrimination on the basis of ‘family status’. Both decisions were penned by The Honourable Leonard S. Mandamin.

First, on January 31, 2013, the Federal Court released  Canada (Attorney General) v. Johnstone, 2013 FC 113 (CanLII). Here, Ms. Fiona Johnstone complains of human rights discrimination at work due to family status. Johnstone argued that her employer, the Canadian Border Services Agency, “engaged in a discriminatory employment practice with respect to family status, specifically, in relation to her parental childcare obligations.”  Johnstone had been working rotating shifts and requested full-time, fixed day shifts  to accommodate childcare for her kids. The Employer’s policy prohibited fixed day shifts. Johnstone was therefore ineligible for benefits available to full-time employees.

The Court reasons, at paras 125-128:

[125]      Simply stated, any significant interference with a substantial parental obligation is serious. Parental obligations to the child may be met in a number of different ways. It is when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that the case for prima faciediscrimination based on family status is made out.

[126]      In Amselem the Supreme Court of Canada ruled that a person’s freedom of religion is interfered with where the person demonstrates that he or she has a sincere religious belief and a third party interfered, in a manner that is non-trivial or not insubstantial, with that person’s ability to act in accordance with the belief.

[127]      The phrase “a substantial parental duty or obligation”equates with and establishes the same threshold as a sincere religious belief. Amselem.

[128]      In my view, the serious interference test as proposed by the Applicant is not an appropriate test for discrimination on the ground of family status. It creates a higher threshold to establish a prima faciecase on the ground of family status as compared to other grounds. Rather, the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.

This decision is cited and further bolstered by a second decision on the same topic, released February 1, 2013.  In Canadian National Railway v. Seeley, 2013 FC 117 (CanLII) , the Federal Court dismisses an appeal against finding of discrimination on the basis of family status.  Denise Seeley was employed by CN as a freight train conductor. She was on lay-off and was recalled to report to a temporary work assignment to cover a major shortage in Vancouver, British Columbia. She advised she could not report to Vancouver because of childcare issues, as Vancouver was far away from her home in Jasper, Alberta. CN gave Ms. Seeley additional time, however, she did not report for work; as a result, CN terminated her employment.

The Canadian Human Rights Tribunal reinstated her employment, amongst other remedies, and CN appealed the decision. An important component of the decision is at para 78 where Mandamin suggests the following test in assessing whether there is discrimination on the basis of family status:

[78]          In trying to distil the principles the above cases represent, I would venture to suggest there are underlying questions one or the other has either raised or  addressed:

a.         does the employee have a substantial obligation to provide childcare for the child or children; in this regard, is the parent the sole or primary care giver, is the obligation substantial and one that goes beyond personal choice;

b.         are there realistic alternatives available for the employee to provide for childcare: has the employee had the opportunity to explore and has explored available options; and is there a workplace arrangement, process, or collective agreement available to the employee that may accommodate an employee’s childcare obligations and workplace obligations;

c.         does the employer conduct, practice or rule put the employee in the difficult  position of choosing between her (or his) childcare duties or the workplace obligations?

The Federal Court dismissed the appeal, ruling that “the Tribunal’s finding that parental childcare obligations comes within the term “family status” in the Act.” Moreover, the finding  “was reasonable in keeping with the Supreme Court of Canada guidance in Dunsmuir,Khosa and Mowat.”

Episode 39 – Living Resistance

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT – a broadcast about law, cast broadly. Le collectif LegalEase est un groupe d’étudiants et étudiantes en droit de la communauté montréalaise.This month the program is entitled, “Living Resistance.”

Listen to the Episode Here

Charles Roach

Bedford has been given leave to appeal to the Supreme Court of Canada. What is Bedford? See past LegalEase programming (yes, we follow-up) and the Ontario Court of Appeal decision, Canada (Attorney General) v. Bedford, 2012 ONCA 186 (CanLII). This month, Garrett Zehr sets up a nice piece featuring Alan Young, Osgoode Law professor and the lawyer, and Tara Santini, a member and consultant for Stella.

Second, Preeti Dhaliwal gives a rousing and thoughtful contribution on Remembrance Day and militarism.

Third, collective member Alyssa Clutterbuck pays tribute to Civil Rights activist and lawyer Charles Roach. Roach fought institutional racism, defended asylum seekers and was a stalwart advocate for social justice. Roach co-founded the Black Action Defence Committee, Caribana, Citizens for a Canadian Republic, and was a long-time member of the Law Union of Ontario.

LegalEase on 90.3 FM is a radio program broadcast every second Friday of the month at 11am EST from Montreal, Quebec. Originally founded by the McGill Legal Information Clinic in 1989, LegalEase is now run by a collective of progressive of law students from McGill University. Our weekly radio show deals with legal topics of interest to the community, with the intention of making the law both accessible and engaging. Tune into our show, follow us on Twitter @LegalEaseCkut, email legalease[at]ckut.ca or check our podcast library for past programming.

Episode 38 – The Status of Status

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT – a broadcast about law, cast broadly. Le collectif LegalEase est un groupe d’étudiants et étudiantes en droit de la communauté montréalaise.This month the program is entitled, “The Status of Status.”

http://archive.org/details/LegaleaseOnCkut90.3Fm-Episode38october2012-TheStatusOfStatus

Listen to the Episode Here

Give your temples a massage and let your mind be a sponge, because this week LegalEase delves deep into the dynamics of legal discourse and case analysis. This month, LegalEase assesses new develops in Canadian laws concerning HIV status and Aboriginal status.

The Supremes

In our first segment, Jean-Philippe MacKay and Rosel Kim break down the recent Supreme Court of Canada decisions on the subject of HIV status non-disclosure. R. v. D.C., 2012 SCC 48 (CanLII) and R. v. Mabior, 2012 SCC 47 (CanLII).

The second segment looks at the Canadian State’s most recent ruminations on Aboriginal Status. Eden Alexander presents the recent Ontario Court of Appeal decision, United States v. Leonard, 2012 ONCA 622 (CanLII). You may find, as did the learned Sharpe J.A., that this piece “shocks the conscience.”

LegalEase on 90.3 FM is a radio program broadcast every second Friday of the month at 11am EST from Montreal, Quebec. Originally founded by the McGill Legal Information Clinic in 1989, LegalEase is now run by a collective of progressive of law students from McGill University. Our weekly radio show deals with legal topics of interest to the community, with the intention of making the law both accessible and engaging. Tune into our show, follow us on Twitter @LegalEaseCkut, email legalease[at]ckut.ca or check our podcast library for past programming.

Episode 35 – Rethinking Legal Structures

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT – a broadcast about law, cast broadly. Le collectif LegalEase est un groupe d’étudiants et étudiantes en droit de la communauté montréalaise.This month the program is entitled, “Rethinking Legal Structures.”

“C’est pas extrêmement du fun.”

Listen to the Episode Here

Law?

Host Garret Zehr guides us through three main topics, all of which force a reconsideration of the present legal structure in place. In order: 1) the Quebec Student Movement and the legal struggles of CLASSE and other activists in the courts – J-P MacKay speaks with Me Sibel Ataogul; 2) Adelle Blackett offers an evaluation of the legal framework of labour law, especially as it applies to workers from the global south and in relation to domestic workers; and 3) Me Étienne Poitras sur la sujet des mouvements sociales et les droits de manifestants.

LegalEase on 90.3 FM is a radio program broadcast every second Friday of the month at 11am EST from Montreal, Quebec. Originally founded by the McGill Legal Information Clinic in 1989, LegalEase is now run by a collective of progressive of law students from McGill University. Our weekly radio show deals with legal topics of interest to the community, with the intention of making the law both accessible and engaging. Tune into our show, follow us on Twitter @LegalEaseCkut, email legalease[at]ckut.ca or check our podcast library for past programming.

Episode 34 – Methods of Suppression

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT – a broadcast about law, cast broadly. Le collectif LegalEase est un groupe d’étudiants et étudiantes en droit de la communauté montréalaise.This month the program is entitled, “Methods of Suppression.”

Methods of Suppression – from popular assembly to personal information to gender identity. What are the tools of the state? LegalEase speaks with Irena Ceric of the Movement Defence Committee, Michael Vaughn of BCCLA, Dean Spade Assistant Professor at Seattle University.

Listen to the Episode Here

RCMP Truth Verification – Fewlings.

LegalEase on 90.3 FM is a radio program broadcast every second Friday of the month at 11am EST from Montreal, Quebec. Originally founded by the McGill Legal Information Clinic in 1989, LegalEase is now run by a collective of progressive of law students from McGill University. Our weekly radio show deals with legal topics of interest to the community, with the intention of making the law both accessible and engaging. Tune into our show, follow us on Twitter @LegalEaseCkut, email legalease[at]ckut.ca or check our podcast library for past programming.

Episode 33: Courage – Legal Decisions and Social Change

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT – a broadcast about law, cast broadly. Le collectif LegalEase est un groupe d’étudiants et étudiantes en droit de la communauté montréalaise. This month the program is entitled, “Legal Decisions and Social Change.”

Listen to the Episode Here

“Sometimes law precipitates social change, sometimes its the other way around.” This month Garrett Zehr hosts a fine assortment of pieces: discrimination and the law, Insite and its impact across Canada, as well as an opening segment by Stephany Laperriere on law and social movements. What are the contradictions and strengths of legal decisions and social change? LegalEase investigates.

en greve!

LegalEase on 90.3 FM is a radio program broadcast every second Friday of the month at 11am EST from Montreal, Quebec. Originally founded by the McGill Legal Information Clinic in 1989, LegalEase is now run by a collective of progressive of law students from McGill University. Our weekly radio show deals with legal topics of interest to the community, with the intention of making the law both accessible and engaging. Tune into our show, follow us on Twitter @LegalEaseCkut, email legalease[at]ckut.ca or check our podcast library for past programming.

Episode 32 – Police, Protest and Peaceful Assembly

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT. We broadcast law broadly. Le collectif LegalEase est un groupe d’étudiants et étudiantes en droit de la communauté montréalaise. This month the program is entitled, “Police, Protest, and Peaceful Assembly.”

Listen to the Episode Here

This month LegalEase non-violently confronts the topic of Police, Protest and Peaceful Assembly. Back-drop – wide-spread protests in Quebec on tuition issues as well as the annual march against Police Brutality. Who polices the police? What does protest entail? We have an all-star line-up to discuss the pithy issues – Natalie DesRosiers, David Eby, Fo Niemi, Judy Rebick, Alex Hundert and others. The episode will bring the controversy to the table, tackling G20, Occupy and other examples of assembly from the past decade.

The G20 Sound Cannon

LegalEase on 90.3 FM is a radio program broadcast every second Friday of the month at 11am EST from Montreal, Quebec. Originally founded by the McGill Legal Information Clinic in 1989, LegalEase is now run by a collective of progressive of law students from McGill University. Our weekly radio show deals with legal topics of interest to the community, with the intention of making the law both accessible and engaging. Tune into our show, follow us on Twitter @LegalEaseCkut, email legalease[at]ckut.ca or check our podcast library for past programming.

Canada’s Most Astonishing Courthouses

Old Supreme Court of Canada

At work today, I was overwhelmed by the beauty of Old City Hall. So I decided to write a quick bit on Courthouses in Canada. There are at least 261 buildings in Canada designated heritage sites, so we have some ground to cover! We welcome additions, so please, if I overlook a magnificent / thoughtful building, please let me know.

Note: this post will double up as a link directly to the Court information of the particular Courthouse in question. That way, in case you randomly found this page in search of ‘useful’ information, all birds will have been killed.

1. Old City Hall, Ontario Court of Justice, Toronto, Ontario

Old City Hall, Toronto Archives, 1914

Even before being one of Canada’s most beautiful courthouses, Old City Hall makes the list as one of Canada’s most astonishing buildings. This court does mostly criminal – provincial and federal. Inside, you will find murals, stone work, stained glass, and remnants of its former self, the seat of municipal government for the City of Toronto. Absolutely beautiful, it is worth a stroll. This, coupled with the increasingly absurd treatment of criminals provides a fascinating vista into Canadian society. If ever in Toronto and so inclined, consult this online tour of the building to add nuance to a visit.

In the 2000s, CBC produced a show featuring a new criminal defence lawyer situated within Old City Hall. This is Wonderland ran for four seasons and, even though it is a comedy, gives a pretty accurate depiction of the every-day happenings at OCH.

2. Battleford Courthouse, Battleford, Saskatchewan

Welcome to Battleford

Unveiled 1785 – Like an fully-grown, old tree. This building is over 200 years and is still still simmering. Described as ” Romanesque Revival-style exterior.” The wikipedia article gives me lots of useful information. This building was formerly a trading post for Hudson’s Bay, post for the RCMP, and perhaps was even the seat of government, when the bustling metropolis of Battlefield was made capital of the North West Territories from 1877 to 1883. Indeed, the site is linked with the ignominious Red River Rebellions and several comrades of Louis Riel were probably executed at this site. For Canada approved history, look here; for critical history, look here.

Aside from standing as one of Canada’s oldest Courthouses, this building represents a relationship between First Nations peoples in Canada and White settler society. Thus, we find this building within the registry of buildings of Heritage Canada.

Talking Shop at Battleford

3. More to come…

Episode 26: Crimes

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT. We broadcast law broadly. Le collectif LegalEase est un group des etudiants et etudiantes en droit de la communaute montrealaise. This month the program is entitled, “Crimes.” Listen to the Episode Here: http://goo.gl/wVnjX

This month’s show features a diverse set of programming on the topic of crime. New contributor Mark Phillips conducts an interview Fetal Alcohol Spectrum Disorder and how it relates to prisoners in the justice system. Garrett Zehr presents a piece on efforts to charge Bush administration officials with war crimes. Host Preeti Dhaliwal revisits some older content on Insite, in light of the new Supreme Court decision which recently came down on the subject. She also offers an update on the MUNACA strike. Finally, Jesse Gutman breaks down the jargon on the Conservative’s Omnibus Crime bill, the Safe Streets and Communities Act.

Tune in live every second Friday of every month from 11h00-12h00 on CKUT 90.3 FM in Montreal or listen on-line at http://www.ckut.ca. For more programming, check us out at http://legaleaseckut.wordpress.com

Extra, Extra: Supreme Court has published Insite decision!

In case you haven’t heard, the Supreme Court has recently released their decision in the matter of Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44

PHS Community Services

LegalEase has previously covered this case in its earlier incarnations. Check out our coverage of this speech delivered by Hester Lessard: http://legaleaseckut.wordpress.com/2011/07/01/episode-20-mar-2011-downtown-eastside-vancouver/

For more in-depth ruminations on the subject, please refer to our friends at Pivot Legal in Vancouver: http://pivotlegal.org/pivot-points/blog/the-historic-insite-decision-in-a-nutshell#cdnpoli

Pivot Legal