Adjudication and Decisions
A Guide to a Human Rights Hearing
Summaries and Complete Decisions
Discrimination based on Protected Characteristics
Criminal Record
Penner v. Fort Garry Services Inc.
(2009)(Adjudication)
SUMMARY
The complainant filed a complaint against his former employer under section 14 of The Human Rights Code alleging that he had been discriminated against on the basis of a criminal record when he was not provided with adequate opportunity within which to provide documentation of his criminal record and was terminated from his employment.
The complainant alleged that he had notified his employer during the interview process for a caretaker position in an apartment complex that he had been convicted on two occasions for "driving under the influence" of alcohol. He was advised that he would be considered "in training" and would not assume the full responsibilities of the position until he produced the documentation evidencing his criminal record. The respondent requested that he provide the documentation by a certain date, which was not possible, and ultimately terminated his employment before the deadline in any event.
The Adjudicator accepted that the criminal record check was a reasonable requirement because the complainant would have keys to all of the apartments when he assumed the full duties of the position and that the residents of the apartment complex were generally elderly and vulnerable to fraud and theft. The Adjudicator found that the complainant's employment was not terminated because of his criminal record or because he could not produce documentation by the required deadline. His employment was terminated because he demonstrated little interest in doing his job, walked away from tasks before they were completed, and was argumentative and defensive.
The complaint was dismissed.
Disability
Kallen v. Midwest Pallet Works Ltd.
(2012)(Adjudication)
SUMMARY
The complainant filed a complaint against her employer on the basis of disability and marital status under section 14 of The Human Rights Code alleging that her employer (the President was formerly her common law partner) failed to accommodate her by allowing her to continue on the company benefit plan, while she was away from work due to a back injury and collecting workers compensation benefits.
Despite numerous attempts, the Commission was unable to contact the complainant to confirm that she intended to pursue her complaint at a hearing and to gather evidence required to establish her compla
A hearing was convened via teleconference. The Commission and the respondent attended. The complainant did not attend. The Commission made a preliminary motion to have the complaint dismissed.
The Adjudicator found that it was no longer in the public interest that the matter should continue, given that the complainant did not appear to be willing to pursue her complaint and because the Commission has conduct of the complaint and could not communicate with her.
The complaint was dismissed without costs.
Ursel v. LMG Properties Ltd. (O/A Bay Hill Inns & Suites)
(2009)(Adjudication)
SUMMARY
The complainant filed a complaint against the respondent hotel owners under section 13 of The Human Rights Code alleging that they failed to accommodate her disability by providing her with a wheelchair accessible hotel room.
The complainant alleged that she had rented a room from the respondents on four previous occasions and found them to have offered a very suitable and accessible room. On the date in question she tried to rent the room and was advised that the respondents no longer had an accessible room. The complainant alleged that there were no other wheelchair accessible rooms available in the town. The respondents were not present at the hearing.
The Adjudicator found that since the room had been available and was no longer available, there was no bona fide or reasonable cause existing for the discrimination, nor was there any evidence that the respondent had taken reasonable steps to mitigate or avoid contravention of The Code.
Remedy: The Adjudicator ordered that within 60 days of the date of the decision, an implementation plan be filed by the respondents with a copy to the complainant and the Manitoba Human Rights Commission, dealing with the availability of the wheelchair accessible suite in the hotel and that the Commission monitor that situation for 2 years. The complainant was awarded general damages in the amount of $3,000.
L.H. v. Vietnamese Non-Profit Housing Corp.
(2007)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging that the respondent had failed to accommodate her due to her physical disability.
The complainant alleged that she had worked as a caretaker for the respondent housing corporation. She had cancer, was scheduled for surgery and requested time off to recover. The respondent argued that the complainant's employment terminated on the basis that she was unable to fulfill her employment contract due to poor health. The respondent had informed the complainant that if she was not available for work, she did not have a job.
The Adjudicator accepted the respondent's explanation that it was unaware of its duty to accommodate the complainant but found that it had discriminated against her.
Remedy: The complainant was awarded $1,228.17 as compensation for lost wages, and $3,000 for injury to dignity.
A. v. Natural Progress Inc. et al.
(2005)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Manitoba Human Rights Code alleging that she was discriminated against when her employment was terminated because she has a physical disability.
The complainant alleged that she was hired to work in the kitchen at a business comprised of gas service, a convenience store and restaurant. She alleged that a few days after telling her employer that she suffered from Hepatitis C, her shifts were reduced, she was sent to work as a cashier and then her employment was terminated. The respondent had contacted a public health nurse to obtain more information about Hepatitis C and was reassured that the business' standard kitchen procedures were sufficient to deal with any risk of transmission of the disease and that persons with this disease are not considered to raise any health risks for the food industry. Despite being provided with this information, the respondent terminated the complainant's employment.
The Adjudicator found that the complainant's employment was terminated because of her disability. Although the respondent had a legitimate need for information, sufficient information was supplied to him to allay his concerns. The respondent was not able to justify the discriminatory conduct.
Remedy: The complainant was awarded $2,000 in damages as compensation for injury to her dignity, feelings and self respect. This was the amount sought by the Manitoba Human Rights Commission on the complainant's behalf, not because it considered this amount fair, but because she is on social assistance and anything greater would be clawed back by the government. The respondents were also ordered to refrain from discriminating against other persons with Hepatitis C in the future.
Family Status
Hiebert v. Martin- Liberty Realty Ltd.
(2009)(Adjudication)
The complainant filed a complaint against the respondent under section 16 of The Human Rights Code alleging that she was discriminated against on the basis of her family status when the respondent denied her the opportunity to rent an apartment, without a reasonable excuse.
The complainant had a young child and is a single mom. The respondent informed her that they rented only ground-floor apartments to families with children, in order to protect other tenants from noise, but there were no ground-floor apartments available at the time.
The Adjudicator found that trying to prevent excess noise was a legitimate goal for a landlord, but concluded that it did not necessarily have to restrict families with children from renting second or third-floor apartments in order to accomplish this. The respondent had not asked the complainant for references, nor had any other alternatives been explored. The Adjudicator found that the respondent's "ground-floor-only" policy discriminated on the basis of family status.
Remedy: The complainant $1,000 for the distress and injury to dignity caused by the discrimination.
Morriseau v. Paisley Park
(2000)(Adjudication)
SUMMARY
The complainant filed a complaint against the owners of a store alleging discrimination on the basis of family status and sex, including pregnancy or circumstances related to pregnancy, because she was not allowed to breastfeed her child in the respondent's store.
The complainant alleged that she had tried to breastfeed her six month old daughter in the store but was asked by the owner to go outside to the courtyard in order to breastfeed.
The Adjudicator considered the respondent's duty to accommodate the complainant and determined that a reasonable accommodation was a place for the complainant to sit that was clean, comfortable, and somewhat private. The courtyard offered was found to be as suitable, secure and comfortable for the complainant to breastfeed her daughter as the chair she used in the store. In considering the complainant's argument that the courtyard amounted to segregation and represented outdated and sexist attitudes, the Adjudicator noted that even if that were the attitude of the respondents in this case, it would not make a difference to the outcome in the case. The question is only what is the effect of the conduct on the person entitled to protection. The Adjudicator concluded that the respondent offered to reasonably accommodate the complainant.
The complaint was dismissed.
Vogel v. Manitoba (No. 4)
(1997)(Adjudication)
SUMMARY
The adjudication continued as directed by the Court of Appeal, to consider specifically the provisions in The Human Rights Code that allow bona fide and reasonable cause for the discrimination.
The Adjudicator found that the respondents were able to demonstrate bona fide and reasonable cause for denying benefits to homosexual civil servants, only with respect to the pension plan and not with respect to any of the other employee benefits. The Adjudicator considered that the complainant's same-sex partner was not entitled to claim benefits under the following components of his partner's employee benefits package: dental; extended health care; ambulance, hospital and semi-private plan (AHSP); and pension plan. It appeared that he could claim benefits under the group life insurance policy.
The Government did not bring any evidence to demonstrate that there was bona fide and reasonable cause for excluding the complainant's same sex partner from the extended health plan and group life insurance. The extended health plan premiums were paid directly by employees, so the Government incurs no additional cost by extending this benefit to same-sex couples. The group life insurance policy did not appear to exclude same-sex couples, so the Adjudicator assumed that the insurer would honour their claims and that it would have structured its premiums accordingly.
With respect to the dental plan and the AHSP, the complainants acknowledged that costs would increase but that would still not excuse discrimination unless the increased costs would render the plan non-viable. The Government argued that the provisions in the collective agreement had been fairly negotiated between the Government and the Union and were therefore bona fide and reasonable. The Government also argued that the adjudicator should consider the additional costs and administrative burden of expanding protection from discrimination, as well as the social, legal and political context of benefit programs.
With respect to the pension plan, the complainants acknowledged that expanding coverage to same-sex spouses would contravene the federal Income Tax Act, therefore jeopardizing the plan and accordingly, requested the Government create a separate program that would give affected persons a comparable benefit, or alternatively, declare an entitlement to equivalent benefits to take effect whenever the Income Tax Act be amended to permit it. The Government emphasized that deregistration of the plan would have substantial consequences on all employees as would creating an offside arrangement outside of the plan.
The Adjudicator ultimately found that there was no bona fide and reasonable cause for the discriminatory denial of the extended health care, group life insurance, dental and AHSP plans to homosexual civil servants involved in same-sex relationships. It also found that the Government had shown bona fide and reasonable cause to justify continued discriminatory denial of benefits with respect to the pension plan.
The appeal was therefore allowed in part.
Remedy: Benefits, other than those related to the pension plan, were ordered to be extended accordingly and it was noted that the group life plan benefits may already have been expended. If the Income Tax Act were to be amended, the Government should implement appropriate changes to the pension plan however that was not made a conditional order. No damages were sought by the complainants or awarded.
Vogel v. Manitoba (No. 3)
(1996)(Adjudication)
SUMMARY
The adjudication continued as directed by the Manitoba Court of Appeal to consider specifically the provisions in The Human Rights Code that allow bona fide and reasonable cause for the discrimination.
The Adjudicator made a preliminary decision on the procedural question of whether or not it should allow the respondents to enter new evidence pertinent to the issue of bona fide and reasonable justifications for the discrimination, given that five years had elapsed between the original hearing of the complaint by the Adjudicator and the decision of the Manitoba Court of Appeal.
The Adjudicator found that since the law had developed in this intervening period, the respondents should be allowed to enter new evidence.
Vogel v. The Government of Manitoba et al.
(1995)(Manitoba Court of Appeal)
SUMMARY
The complainant appealed the decision of the Court of Queen's Bench that had affirmed the Adjudicator's decision that the complainant and his same sex partner had not been discriminated against on the basis of their sex, marital status, family status and/or sexual orientation when the complainant's same sex partner was not entitled for coverage under certain portions of the complainant's employee benefit plan, to the Manitoba Court of Appeal.
In a unanimous decision, issued in two concurring judgments, the Court of Appeal relied on the Supreme Court of Canada's reasoning in Egan v. Canada and using a section 5 of the Charter analysis, found that the challenged plans and legislation draw a clear distinction between opposite-sex couples and same-sex couples resulting in direct discrimination. They found that this distinction amounted to a denial of an equal benefit of the law on the basis of sexual orientation.
It was noted by the Court that in the Egan v. Canada case, Egan and his partner, Nesbitt were denied relief because of the limiting provision in s. 1 of the Charter, whereas The Human Rights Code does not have a general limiting provision. Neither the Adjudicator, nor the Court of Queen's Bench had considered, the qualifying phrase, "unless a bona fide and reasonable cause exists for the discrimination" in the relevant sections of the Code. However, the Court of Appeal noted this and further, that there was little or no evidence to explain the differential treatment of homosexual couples under the benefit plans.
The Court of Appeal allowed the appeal, sets aside the Adjudicator's decision and directed that the adjudication continue in accordance with the decision of the Court.
Vogel v. The Government of Manitoba et al.
(1992)(Manitoba Court of Queen's Bench)
SUMMARY
The complainant appealed the Adjudicator's decision that the complainant and his same sex partner had not been discriminated against on the basis of their sex, marital status, family status and/or sexual orientation when the complainant's same sex partner was not entitled for coverage under certain portions of the complainant's employee benefit plan, to the Manitoba Court of Queen's Bench.
The Court confirmed the Adjudication ruling that re-litigating Vogel's complaints based on sex and marital status which had been heard and decided ten years earlier constituted an abuse of process. The Court further found that the complainant and his partner did not constitute a family because a family includes children or is a unit in which there is the potential to conceive, nurture, and bring up children. They noted that homosexual couples without children are not families in the accepted sense of the word and that accordingly, the complainants were not discriminated against because of family status. Similarly, because the employee benefit plans were designed to cover spouses and children, a partner of the same sex is not a spouse and cannot claim benefits and the discrimination therefore was not based on the sexual orientation of the employee and his partner, but rather on the fact that they were not spouses.
The appeal was dismissed.
Vogel v. The Government of Manitoba et al. (No. 2)
(1991)(Adjudication)
SUMMARY
In 1987, changes were made to Manitoba's human rights legislation to add sexual orientation as a prohibited ground of discrimination under section 9 of The Human Rights Code and to remove the previous definition of family status.
The complainant and his same-sex partner filed new complaints against the government and the complainant's union and the Civil Service Commission alleging discrimination on the basis of sexual orientation because they continued to lack access to employee benefits available to heterosexual couples.
The complainant alleged that his same-sex partner was not entitled to claim benefits under the following components of his employee benefits package: dental, extended health care, ambulance, hospital and semi-private plan (AHSP); and pension plan, as would a heterosexual partner be entitled.
The Adjudicator found that there was no discrimination on the basis of sex, marital status, family status, and sexual orientation, noting that the addition of sexual orientation as a new ground of prohibited discrimination and the case law arising since the previous complaint in 1982 did not justify the new complaints and therefore the new complaints on the grounds of sex, marital status, and family status were an abuse of process. The Adjudicator found that each prohibited ground must stand on its own and the addition of a new prohibited ground is irrelevant to the interpretation of other grounds.
The Adjudicator also found that there was no discrimination on the basis of sexual orientation on the basis that a person could be married or have children and yet be homosexual and the heterosexual partner and children of such a person would be eligible for benefits.
The complaints were dismissed.
The Vogel decisions summarized below provide a history of the evolution of human rights based on sexual orientation in Manitoba.
Vogel v. The Government of Manitoba et al. (No. 1)
(1983)(Adjudication)
SUMMARY
The complainant filed a complaint against the government and his employee union alleging that they discriminated against him under the former Human Rights Act on the basis of his sex and marital status by refusing his same sex partner coverage under his employee benefit plan.
The Adjudicator found that the discrimination alleged did not fall within the parameters of the Human Rights Act, as the legislation did not include sexual orientation as a prohibited ground of discrimination. The discrimination was not because of sex, because sex refers to gender and benefits are provided to employees and spouses of both genders, and was not because of marital status because martial status refers to the state of being married, widowed, divorced, single or living in a common-law relationship, which did not apply to Vogel and his partner.
The complaint was dismissed.
Religion
Schroen v. Steinbach Bible College
(1999)(Adjudication)
SUMMARY
The complainant filed a complaint against a prospective employer under section 14(1) of The Manitoba Human Rights Code alleging discrimination on the basis of religion.
The complainant alleges that she grew up in the Mennonite faith but at the time of applying for a position as an accounting clerk, was a Mormon. She was awarded the position, but her employment was terminated two days later when the respondent became aware that she was not a Mennonite.
The Adjudicator found that the complainant was terminated from her employment for reasons related to her religion. The Adjudicator found, however, that being a Mennonite was a bona fide and reasonable occupational requirement, given that the respondent college operates as a tightly knit community and it was assumed that the complainant would interact with students, attend functions, invite students to her home, and be available to talk to them about her faith.
The complaint was dismissed.
Sex
Manitoba High Schools Athletic Assn. Inc. v. Pasternak
(2008)(Manitoba Court of Queen's Bench)
SUMMARY
The respondent appealed the Adjudicator's decision that it had discriminated against the complainants on the basis of sex, to the Manitoba Court of Queen's Bench.
The Court considered the appropriate standard for judicial review and determined that the single standard for judicial review of questions of fact, or of mixed fact and law, is "reasonableness". The standard of review for questions of law and jurisdiction is correctness.
The Court considered in particular, whether the Adjudicator had erred by not requiring the complainants to prove injury to dignity as an element of discrimination. It was found that the Adjudicator did not err and that it was not obligated to apply the 2 step, Law test set out by the Supreme Court of Canada in cases involving non-governmental actors. It noted that the Law test was developed in the Charter context and the Charter applies only to public actors. The Law test been applied in human rights complaints where government benefit schemes are involved, where arguably there is an overlap between Charter and statutory human rights protections, but has not been applied in complaints against private entities. The Court found that the Adjudicator had correctly focused on the differential treatment of the complainants and the adverse effects on them as a result of the respondent's actions, in determining that there was a prima facie case of discrimination. The Court did note, however, that even under the Law test, there was no error because the Adjudicator had applied a substantive equality approach, which focused on the judging the complainants on their personal merit rather than their gender. Further there was no error in finding that the respondent had failed to prove that being male was a bona fide qualification for participation on the team, which is a question of mixed fact and law. The Adjudicator's findings were determined to be based on reasonable assumptions and analysis and were also correct in the circumstances.
The Court upheld the Adjudicator's award of general damages and affirmed that the complainants be provided with coaching support and be allowed a session at hockey school to catch up on what they had missed during their period of exclusion. The Court noted that although it would not have made this order, there was a rational basis for the Adjudicator's decision.
The appeal was dismissed, with costs awarded to the Manitoba Human Rights Commission.
Pasternak v. Manitoba High Schools Athletic Association Inc. (No. 2)
(2006)(Adjudication)
SUMMARY
Two sisters filed complaints against the respondent high school athletic association under section 13 of The Human Rights Code alleging discrimination on the basis of sex because they were not permitted to try out for the men's hockey team.
The complainants alleged that they had played boys' hockey since they were young and that in Grade 10, they were signed up to try out for the men's hockey team. That year, for the first time, the respondent had established a women's hockey team and the complainants were advised that they had to try out for the women's team, because there was one. The complainants alleged that they clearly had competitive skills and therefore this rule was discriminatory. The respondent argued that the complainants should play on the women's team because they would help the less skilled women to play better and that allowing some women to play on men's teams on the basis of merit would have the effect of undermining the development of women's hockey.
The Adjudicator found that the respondent's rule was discriminatory on the basis of sex, as the women's team did not offer the same level of play and competition as the men's team. The complainants were denied the opportunity to be judged on the basis of their merit because they were not able to try out.
Remedy: The respondent was ordered to remove the requirement that females try out and play on female-only hockey teams if the school has one, and awarded the complainants compensation for their loss of skills during the 2004–2006 period by way coaching support and hockey school opportunities. The complainants were awarded general damages of $3,500 each, as compensation for the injury to their dignity caused by the discrimination.
Pasternak v. Manitoba High Schools Athletic Assn. Inc. (No. 1)
(2006)(Adjudication)
SUMMARY
Two sisters filed complaints against the respondent high school athletic association under section 13 of The Human Rights Code alleging discrimination on the basis of sex because they were not permitted to try out for the men's hockey team.
The Adjudicator made a preliminary decision with respect to jurisdiction and determined that (1) the respondent was correctly named as a party as it makes provincial athletic competition available to high school students, (2) the complainants were entitled to file a complaint whether or not the respondent's internal appeal process had been exhausted and (3) the services provided are available to the public within the meaning of The Code. Accordingly, the Adjudicator was found to have jurisdiction to hear the complaints.
Dubeck v. C.F.
(2002)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging that she was discriminated against on the basis of her sex.
The complainant alleged that she was hired as a labourer but was not permitted to work on certain jobs and was ultimately laid off because she was female. The respondent did not provide any justification for these actions.
The Adjudicator found on the evidence that the respondent's decision to deny a specific job opportunity to the complainant and to lay her off was as a result of her being female.
Remedy: The complainant was awarded $600 for lost wages, $1,500 in general damages for injury to her feelings, in addition to $750 as exemplary damages, and $620.36 for expenses incurred because of the discrimination.
Morriseau v. Paisley Park
(2000)(Adjudication)
SUMMARY
The complainant filed a complaint against the owners of a store alleging discrimination on the basis of family status and sex, including pregnancy or circumstances related to pregnancy, because she was not allowed to breastfeed her child in the respondent's store.
The complainant alleged that she had tried to breastfeed her six month old daughter in the store but was asked by the owner to go outside to the courtyard in order to breastfeed.
The Adjudicator considered the respondent's duty to accommodate the complainant and determined that a reasonable accommodation was a place for the complainant to sit that was clean, comfortable, and somewhat private. The courtyard offered was found to be as suitable, secure and comfortable for the complainant to breastfeed her daughter as the chair she used in the store. In considering the complainant's argument that the courtyard amounted to segregation and represented outdated and sexist attitudes, the Adjudicator noted that even if that were the attitude of the respondents in this case, it would not make a difference to the outcome in the case. The question is only what is the effect of the conduct on the person entitled to protection. The Adjudicator concluded that the respondent offered to reasonably accommodate the complainant.
The complaint was dismissed.
Vogel v. Manitoba (No. 4)
(1997)(Adjudication)
SUMMARY
The adjudication continued as directed by the Court of Appeal, to consider specifically the provisions in The Human Rights Code that allow bona fide and reasonable cause for the discrimination.
The Adjudicator found that the respondents were able to demonstrate bona fide and reasonable cause for denying benefits to homosexual civil servants, only with respect to the pension plan and not with respect to any of the other employee benefits. The Adjudicator considered that the complainant's same-sex partner was not entitled to claim benefits under the following components of his partner's employee benefits package: dental; extended health care; ambulance, hospital and semi-private plan (AHSP); and pension plan. It appeared that he could claim benefits under the group life insurance policy.
The Government did not bring any evidence to demonstrate that there was bona fide and reasonable cause for excluding the complainant's same sex partner from the extended health plan and group life insurance. The extended health plan premiums were paid directly by employees, so the Government incurs no additional cost by extending this benefit to same-sex couples. The group life insurance policy did not appear to exclude same-sex couples, so the Adjudicator assumed that the insurer would honour their claims and that it would have structured its premiums accordingly.
With respect to the dental plan and the AHSP, the complainants acknowledged that costs would increase but that would still not excuse discrimination unless the increased costs would render the plan non-viable. The Government argued that the provisions in the collective agreement had been fairly negotiated between the Government and the Union and were therefore bona fide and reasonable. The Government also argued that the adjudicator should consider the additional costs and administrative burden of expanding protection from discrimination, as well as the social, legal and political context of benefit programs.
With respect to the pension plan, the complainants acknowledged that expanding coverage to same-sex spouses would contravene the federal Income Tax Act, therefore jeopardizing the plan and accordingly, requested the Government create a separate program that would give affected persons a comparable benefit, or alternatively, declare an entitlement to equivalent benefits to take effect whenever the Income Tax Act be amended to permit it. The Government emphasized that deregistration of the plan would have substantial consequences on all employees as would creating an offside arrangement outside of the plan.
The Adjudicator ultimately found that there was no bona fide and reasonable cause for the discriminatory denial of the extended health care, group life insurance, dental and AHSP plans to homosexual civil servants involved in same-sex relationships. It also found that the Government had shown bona fide and reasonable cause to justify continued discriminatory denial of benefits with respect to the pension plan.
The appeal was therefore allowed in part.
Remedy: Benefits, other than those related to the pension plan, were ordered to be extended accordingly and it was noted that the group life plan benefits may already have been expended. If the Income Tax Act were to be amended, the Government should implement appropriate changes to the pension plan however that was not made a conditional order. No damages were sought by the complainants or awarded.
Vogel v. Manitoba (No. 3)
(1996)(Adjudication)
SUMMARY
The adjudication continued as directed by the Manitoba Court of Appeal to consider specifically the provisions in The Human Rights Code that allow bona fide and reasonable cause for the discrimination.
The Adjudicator made a preliminary decision on the procedural question of whether or not it should allow the respondents to enter new evidence pertinent to the issue of bona fide and reasonable justifications for the discrimination, given that five years had elapsed between the original hearing of the complaint by the Adjudicator and the decision of the Manitoba Court of Appeal.
The Adjudicator found that since the law had developed in this intervening period, the respondents should be allowed to enter new evidence.
Vogel v. The Government of Manitoba et al.
(1995)(Manitoba Court of Appeal)
SUMMARY
The complainant appealed the decision of the Court of Queen's Bench that had affirmed the Adjudicator's decision that the complainant and his same sex partner had not been discriminated against on the basis of their sex, marital status, family status and/or sexual orientation when the complainant's same sex partner was not entitled for coverage under certain portions of the complainant's employee benefit plan, to the Manitoba Court of Appeal.
In a unanimous decision, issued in two concurring judgments, the Court of Appeal relied on the Supreme Court of Canada's reasoning in Egan v. Canada and using a section 5 of the Charter analysis, found that the challenged plans and legislation draw a clear distinction between opposite-sex couples and same-sex couples resulting in direct discrimination. They found that this distinction amounted to a denial of an equal benefit of the law on the basis of sexual orientation.
It was noted by the Court that in the Egan v. Canada case, Egan and his partner, Nesbitt were denied relief because of the limiting provision in s. 1 of the Charter, whereas The Human Rights Code does not have a general limiting provision. Neither the Adjudicator, nor the Court of Queen's Bench had considered, the qualifying phrase, "unless a bona fide and reasonable cause exists for the discrimination" in the relevant sections of the Code. However, the Court of Appeal noted this and further, that there was little or no evidence to explain the differential treatment of homosexual couples under the benefit plans.
The Court of Appeal allowed the appeal, sets aside the Adjudicator's decision and directed that the adjudication continue in accordance with the decision of the Court.
Vogel v. The Government of Manitoba et al.
(1992)(Manitoba Court of Queen's Bench)
SUMMARY
The complainant appealed the Adjudicator's decision that the complainant and his same sex partner had not been discriminated against on the basis of their sex, marital status, family status and/or sexual orientation when the complainant's same sex partner was not entitled for coverage under certain portions of the complainant's employee benefit plan, to the Manitoba Court of Queen's Bench.
The Court confirmed the Adjudication ruling that re-litigating Vogel's complaints based on sex and marital status which had been heard and decided ten years earlier constituted an abuse of process. The Court further found that the complainant and his partner did not constitute a family because a family includes children or is a unit in which there is the potential to conceive, nurture, and bring up children. They noted that homosexual couples without children are not families in the accepted sense of the word and that accordingly, the complainants were not discriminated against because of family status. Similarly, because the employee benefit plans were designed to cover spouses and children, a partner of the same sex is not a spouse and cannot claim benefits and the discrimination therefore was not based on the sexual orientation of the employee and his partner, but rather on the fact that they were not spouses.
The appeal was dismissed.
Vogel v. The Government of Manitoba et al. (No. 2)
(1991)(Adjudication)
SUMMARY
In 1987, changes were made to Manitoba's human rights legislation to add sexual orientation as a prohibited ground of discrimination under section 9 of The Human Rights Code and to remove the previous definition of family status.
The complainant and his same-sex partner filed new complaints against the government and the complainant's union and the Civil Service Commission alleging discrimination on the basis of sexual orientation because they continued to lack access to employee benefits available to heterosexual couples.
The complainant alleged that his same-sex partner was not entitled to claim benefits under the following components of his employee benefits package: dental, extended health care, ambulance, hospital and semi-private plan (AHSP); and pension plan, as would a heterosexual partner be entitled.
The Adjudicator found that there was no discrimination on the basis of sex, marital status, family status, and sexual orientation, noting that the addition of sexual orientation as a new ground of prohibited discrimination and the case law arising since the previous complaint in 1982 did not justify the new complaints and therefore the new complaints on the grounds of sex, marital status, and family status were an abuse of process. The Adjudicator found that each prohibited ground must stand on its own and the addition of a new prohibited ground is irrelevant to the interpretation of other grounds.
The Adjudicator also found that there was no discrimination on the basis of sexual orientation on the basis that a person could be married or have children and yet be homosexual and the heterosexual partner and children of such a person would be eligible for benefits.
The complaints were dismissed.
The Vogel decisions summarized below provide a history of the evolution of human rights based on sexual orientation in Manitoba.
Vogel v. The Government of Manitoba et al. (No. 1)
(1983)(Adjudication)
SUMMARY
The complainant filed a complaint against the government and his employee union alleging that they discriminated against him under the former Human Rights Act on the basis of his sex and marital status by refusing his same sex partner coverage under his employee benefit plan.
The Adjudicator found that the discrimination alleged did not fall within the parameters of the Human Rights Act, as the legislation did not include sexual orientation as a prohibited ground of discrimination. The discrimination was not because of sex, because sex refers to gender and benefits are provided to employees and spouses of both genders, and was not because of marital status because martial status refers to the state of being married, widowed, divorced, single or living in a common-law relationship, which did not apply to Vogel and his partner.
The complaint was dismissed.
Sexual Orientation
Vogel v. Manitoba (No. 4)
(1997)(Adjudication)
SUMMARY
The adjudication continued as directed by the Court of Appeal, to consider specifically the provisions in The Human Rights Code that allow bona fide and reasonable cause for the discrimination.
The Adjudicator found that the respondents were able to demonstrate bona fide and reasonable cause for denying benefits to homosexual civil servants, only with respect to the pension plan and not with respect to any of the other employee benefits. The Adjudicator considered that the complainant's same-sex partner was not entitled to claim benefits under the following components of his partner's employee benefits package: dental; extended health care; ambulance, hospital and semi-private plan (AHSP); and pension plan. It appeared that he could claim benefits under the group life insurance policy.
The Government did not bring any evidence to demonstrate that there was bona fide and reasonable cause for excluding the complainant's same sex partner from the extended health plan and group life insurance. The extended health plan premiums were paid directly by employees, so the Government incurs no additional cost by extending this benefit to same-sex couples. The group life insurance policy did not appear to exclude same-sex couples, so the Adjudicator assumed that the insurer would honour their claims and that it would have structured its premiums accordingly.
With respect to the dental plan and the AHSP, the complainants acknowledged that costs would increase but that would still not excuse discrimination unless the increased costs would render the plan non-viable. The Government argued that the provisions in the collective agreement had been fairly negotiated between the Government and the Union and were therefore bona fide and reasonable. The Government also argued that the adjudicator should consider the additional costs and administrative burden of expanding protection from discrimination, as well as the social, legal and political context of benefit programs.
With respect to the pension plan, the complainants acknowledged that expanding coverage to same-sex spouses would contravene the federal Income Tax Act, therefore jeopardizing the plan and accordingly, requested the Government create a separate program that would give affected persons a comparable benefit, or alternatively, declare an entitlement to equivalent benefits to take effect whenever the Income Tax Act be amended to permit it. The Government emphasized that deregistration of the plan would have substantial consequences on all employees as would creating an offside arrangement outside of the plan.
The Adjudicator ultimately found that there was no bona fide and reasonable cause for the discriminatory denial of the extended health care, group life insurance, dental and AHSP plans to homosexual civil servants involved in same-sex relationships. It also found that the Government had shown bona fide and reasonable cause to justify continued discriminatory denial of benefits with respect to the pension plan.
The appeal was therefore allowed in part.
Remedy: Benefits, other than those related to the pension plan, were ordered to be extended accordingly and it was noted that the group life plan benefits may already have been expended. If the Income Tax Act were to be amended, the Government should implement appropriate changes to the pension plan however that was not made a conditional order. No damages were sought by the complainants or awarded.
Vogel v. Manitoba (No. 3)
(1996)(Adjudication)
SUMMARY
The adjudication continued as directed by the Manitoba Court of Appeal to consider specifically the provisions in The Human Rights Code that allow bona fide and reasonable cause for the discrimination.
The Adjudicator made a preliminary decision on the procedural question of whether or not it should allow the respondents to enter new evidence pertinent to the issue of bona fide and reasonable justifications for the discrimination, given that five years had elapsed between the original hearing of the complaint by the Adjudicator and the decision of the Manitoba Court of Appeal.
The Adjudicator found that since the law had developed in this intervening period, the respondents should be allowed to enter new evidence.
Vogel v. The Government of Manitoba et al.
(1995)(Manitoba Court of Appeal)
SUMMARY
The complainant appealed the decision of the Court of Queen's Bench that had affirmed the Adjudicator's decision that the complainant and his same sex partner had not been discriminated against on the basis of their sex, marital status, family status and/or sexual orientation when the complainant's same sex partner was not entitled for coverage under certain portions of the complainant's employee benefit plan, to the Manitoba Court of Appeal.
In a unanimous decision, issued in two concurring judgments, the Court of Appeal relied on the Supreme Court of Canada's reasoning in Egan v. Canada and using a section 5 of the Charter analysis, found that the challenged plans and legislation draw a clear distinction between opposite-sex couples and same-sex couples resulting in direct discrimination. They found that this distinction amounted to a denial of an equal benefit of the law on the basis of sexual orientation.
It was noted by the Court that in the Egan v. Canada case, Egan and his partner, Nesbitt were denied relief because of the limiting provision in s. 1 of the Charter, whereas The Human Rights Code does not have a general limiting provision. Neither the Adjudicator, nor the Court of Queen's Bench had considered, the qualifying phrase, "unless a bona fide and reasonable cause exists for the discrimination" in the relevant sections of the Code. However, the Court of Appeal noted this and further, that there was little or no evidence to explain the differential treatment of homosexual couples under the benefit plans.
The Court of Appeal allowed the appeal, sets aside the Adjudicator's decision and directed that the adjudication continue in accordance with the decision of the Court.
Vogel v. The Government of Manitoba et al.
(1992)(Manitoba Court of Queen's Bench)
SUMMARY
The complainant appealed the Adjudicator's decision that the complainant and his same sex partner had not been discriminated against on the basis of their sex, marital status, family status and/or sexual orientation when the complainant's same sex partner was not entitled for coverage under certain portions of the complainant's employee benefit plan, to the Manitoba Court of Queen's Bench.
The Court confirmed the Adjudication ruling that re-litigating Vogel's complaints based on sex and marital status which had been heard and decided ten years earlier constituted an abuse of process. The Court further found that the complainant and his partner did not constitute a family because a family includes children or is a unit in which there is the potential to conceive, nurture, and bring up children. They noted that homosexual couples without children are not families in the accepted sense of the word and that accordingly, the complainants were not discriminated against because of family status. Similarly, because the employee benefit plans were designed to cover spouses and children, a partner of the same sex is not a spouse and cannot claim benefits and the discrimination therefore was not based on the sexual orientation of the employee and his partner, but rather on the fact that they were not spouses.
The appeal was dismissed.
Vogel v. The Government of Manitoba et al. (No. 2)
(1991)(Adjudication)
SUMMARY
In 1987, changes were made to Manitoba's human rights legislation to add sexual orientation as a prohibited ground of discrimination under section 9 of The Human Rights Code and to remove the previous definition of family status.
The complainant and his same-sex partner filed new complaints against the government and the complainant's union and the Civil Service Commission alleging discrimination on the basis of sexual orientation because they continued to lack access to employee benefits available to heterosexual couples.
The complainant alleged that his same-sex partner was not entitled to claim benefits under the following components of his employee benefits package: dental, extended health care, ambulance, hospital and semi-private plan (AHSP); and pension plan, as would a heterosexual partner be entitled.
The Adjudicator found that there was no discrimination on the basis of sex, marital status, family status, and sexual orientation, noting that the addition of sexual orientation as a new ground of prohibited discrimination and the case law arising since the previous complaint in 1982 did not justify the new complaints and therefore the new complaints on the grounds of sex, marital status, and family status were an abuse of process. The Adjudicator found that each prohibited ground must stand on its own and the addition of a new prohibited ground is irrelevant to the interpretation of other grounds.
The Adjudicator also found that there was no discrimination on the basis of sexual orientation on the basis that a person could be married or have children and yet be homosexual and the heterosexual partner and children of such a person would be eligible for benefits.
The complaints were dismissed.
Vogel v. The Government of Manitoba et al. (No. 1)
1983)(Adjudication)
The Vogel decisions summarized below provide a history of the evolution of human rights based on sexual orientation in Manitoba.
SUMMARY
The complainant filed a complaint against the government and his employee union alleging that they discriminated against him under the former Human Rights Act on the basis of his sex and marital status by refusing his same sex partner coverage under his employee benefit plan.
The Adjudicator found that the discrimination alleged did not fall within the parameters of the Human Rights Act, as the legislation did not include sexual orientation as a prohibited ground of discrimination. The discrimination was not because of sex, because sex refers to gender and benefits are provided to employees and spouses of both genders, and was not because of marital status because martial status refers to the state of being married, widowed, divorced, single or living in a common-law relationship, which did not apply to Vogel and his partner.
The complaint was dismissed.
Harassment
Thorvaldson Care Homes Ltd. v. Budge
(2006)(Manitoba Court of Appeal)
SUMMARY
The respondent against whom the original complaint was filed, further appealed the Adjudicator's decision that the complainant had been harassed within the meaning of The Human Rights Code, to the Manitoba Court of Appeal.
The Court noted that the Court of Queen's Bench had not addressed the applicable standard of review at the first level of appeal, but that it was apparent from her reasons, that she applied the appropriate standard when dismissing that appeal; the standard of correctness. The Court of Appeal found that regardless of whether the appropriate standard of review was one of patent unreasonableness or correctness, there was no merit to the appellant's grounds of appeal.
The appeal was dismissed with costs.
J.D. v. C.N.
(2005)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that she was sexually harassed by her supervisor.
The complainant alleged that rather than taking reasonable steps to end the harassment, the respondent terminated her employment. She alleged that she was subjected to a sexual solicitation and advance by her supervisor and that when she rejected him, he began to treat her differently. She notified the owner of the company of the situation who told her to "wait and see". Ultimately, the respondent owner terminated the complainant's employment informing her that her complaint of harassment was one of the reasons for the termination.
The Adjudicator found that text message exchanged between the complainant and her supervisor might have given the supervisor reason to believe that his sexual advance would be welcome, however his subsequent advance and his punitive conduct after his advance was rejected, amounted to harassment. The Adjudicator found that the respondent did not definitively deal with the complaint of harassment, and that he terminated the complainant's employment because she was "threatening" to make a human rights complaint.
Remedy: The complainant was awarded $3,250 as compensation for lost wages and $1,500 for injury to dignity.
Thorvaldson Care Homes Ltd. v. Budge
(2005)(Manitoba Court of Queen's Bench)
SUMMARY
The respondent appealed the Adjudicator's decision that the complainant had been harassed within the meaning of The Human Rights Code to the Manitoba Court of Queen's Bench.
The Court was satisfied that the Adjudicator had been in compliance with The Human Rights Code, the principles of natural justice and was procedurally fair.
The appeal was dismissed.
The original Adjudication finding of harassment was upheld by the Manitoba Court of Queen's Bench and the Manitoba Court of Appeal.
Budge v. Thorvaldson Care Homes Ltd.
(2002)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that she was sexually harassed by a co-worker and that rather than taking reaso
The complainant alleged that she had notified her supervisor very soon after she was first subjected to the harassment but that nothing was done about it. Many months later she again reported the harassment to the president and two days later her employment terminated. The respondent argued that the complainant had engaged in a plot with a fellow co-worker to damage the business by quitting just before Christmas and that the harassment allegations were not credible.
The Adjudicator found that the comments and behaviour that the complainant was subjected to by her co-worker were unwelcome and constituted harassment. The Adjudicator also found that the respondent had been informed of the harassment a considerable time before the termination of her employment and was aware, or should have been aware, that there was a serious problem of sexual harassment in the workplace, but failed to take reasonable steps to treat the issue as pressing and serious. The Adjudicator determined that the termination of the complainant's employment was due, at least in part, to her having made allegations of harassment.
Remedy: The respondent was ordered to develop a sexual harassment policy in co-operation with the Manitoba Human Rights Commission and to provide to the Commission, for a period of 2 years, information regarding every female employee who enters or leaves employment, along with any other information the Commission may require to ensure that The Human Rights Code is being complied with. In addition, the complainant was awarded 3 months' salary and benefits as compensation for lost wages and $4,000 for injury to dignity.
Bourrier v. Phil-Can Services Limited et al.
(1999)(Adjudication)
SUMMARY
The complainant filed a complaint against a prospective employer under section 19 of The Human Rights Code alleging that he had made a sexual solicitation of her during the interview process for a job for which she had applied.
The complainant alleged that she had made it known to the respondent that she disapproved of his hiring methods and was not contacted by the respondent again. The respondent did not attend the hearing.
The Adjudicator found that the complainant was subject to a sexual solicitation from a person in a position to confer a benefit and given that the solicitation was made as a prerequisite to a job offer, the respondents knew or ought reasonably to have known that it was unwelcome.
Remedy: The complainant was awarded general damages for injury to dignity, feelings and self respect in the amount of $1,000 in addition to exemplary damages in the amount of $1,000, jointly and severally as against the respondent. The respondent was also ordered to notify the Manitoba Human Rights Commission for a period of 5 years, of any hiring activity, including names, addresses and phone number of all persons interviewed for positions, identity of successful applicants, date of departure from employment of any employees and the ostensible reason for departure, coupled with an entitlement for the Commission to audit the books of any such business or company with respect to its employment practices during the time of that order.
Werestiuk v. Small Business Services Inc. et al.
(1998)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging sexual harassment based on a single incident in which her employer invited her to meeting to discuss business which led to him taking her to a hotel where he made sexual advances towards her.
The respondent chose not to give evidence at the hearing.
The Adjudicator found that the respondent was clearly in a position of authority and therefore the onus shifted to the respondent to demonstrate that his advances were welcome. The Adjudicator found that the respondent should reasonably have known that his conduct would be unwelcome.
Remedy: The complainant was awarded lost wages for time from the date of the incident until she found alternate employment as well as lost wages for the period owing for time prior to that, on the basis that they constituted a benefit lost as a result of the contravention of The Code. The complainant was also awarded general damages for injury to dignity, feelings or self respect in the amount of $2,000 in addition to exemplary damages in the amount of $1,000. A monitoring order permitting the Manitoba Human Rights Commission to monitor the employment practices of the respondents for a period of 2 years from the date of the decision was also ordered.
Procedure
Canadian Blood Services v. Manitoba Human Rights Commission and X
(2011)(Judicial Review)
SUMMARY
The applicant filed an application for judicial review of the Board of Commissioner’s decision to accept jurisdiction of a complaint by X against Canadian Blood Services under section 13 of The Human Rights Code. The complainant alleged that Canadian Blood Services’ donor screening criteria that prohibits a man who has had sex with another man, even once since 1977, from donating blood, discriminated against him on the basis of sexual orientation.
The Manitoba Human Rights Commission argued that the Board’s decision to accept jurisdiction was correct as Canadian Blood Services activities fall under the provincial jurisdiction over health. Canadian Blood Services argued that its activities and its license to operate is governed by the Food and Drugs Act and its regulations which valid federal regulation and accordingly, any change to the donor screening criteria must be approved by Health Canada and the Commission does not have jurisdiction over Health Canada.
The Court accepted that Canadian Blood Services is subject to federal law and regulation and that a change to its establishment license must be approved by Health Canada. The Court considered the legal doctrine of paramountcy to determine if there was in fact an operational conflict between The Human Rights Code and the applicable provisions in the Food and Drugs Act. It found that although the Food and Drugs Act and its regulations do not expressly mandate that the donor screening criteria be followed, Canadian Blood Services must comply with its licence requirements, and to make a change to the donor screening criteria would put Canadian Blood Services in violation of its establishment licence and the Food and Drugs Act and its regulations. Further, the Court found that allowing the Commission to deal with the complaint would frustrate the real purpose of regulating blood safety.
Remedy: Canadian Blood Services was granted an order of certiorari and prohibition as requested and was issued a declaration that the Manitoba Human Rights Commission does not have jurisdiction to proceed with the complaint, and in fact X can file a similar complaint with the Canadian Human Rights Commission if he so wishes.
Korsch v. Pritchard Engineering Company Limited
(2011)(Judicial Review)
SUMMARY
Summary not available
Pollock v. Winnipeg Condominium Corporation No. 30
(2011)(Adjudication)
Summary not available
Willcox v. Ladco Company Limited o/a Lakewood Agencies
(2011)(Adjudication)
Summary not available
Reasonable Accommodation
Kallen v. Midwest Pallet Works Ltd.
(2012)(Adjudication)
SUMMARY
The complainant filed a complaint against her employer on the basis of disability and marital status under section 14 of The Human Rights Code alleging that her employer (the President was formerly her common law partner) failed to accommodate her by allowing her to continue on the company benefit plan, while she was away from work due to a back injury and collecting workers compensation benefits.
Despite numerous attempts, the Commission was unable to contact the complainant to confirm that she intended to pursue her complaint at a hearing and to gather evidence required to establish her compla
A hearing was convened via teleconference. The Commission and the respondent attended. The complainant did not attend. The Commission made a preliminary motion to have the complaint dismissed.
The Adjudicator found that it was no longer in the public interest that the matter should continue, given that the complainant did not appear to be willing to pursue her complaint and because the Commission has conduct of the complaint and could not communicate with her.
The complaint was dismissed without costs.
Penner v. Fort Garry Services Inc.
(2009)(Adjudication)
SUMMARY
The complainant filed a complaint against his former employer under section 14 of The Human Rights Code alleging that he had been discriminated against on the basis of a criminal record when he was not provided with adequate opportunity within which to provide documentation of his criminal record and was terminated from his employment.
The complainant alleged that he had notified his employer during the interview process for a caretaker position in an apartment complex that he had been convicted on two occasions for "driving under the influence" of alcohol. He was advised that he would be considered "in training" and would not assume the full responsibilities of the position until he produced the documentation evidencing his criminal record. The respondent requested that he provide the documentation by a certain date, which was not possible, and ultimately terminated his employment before the deadline in any event.
The Adjudicator accepted that the criminal record check was a reasonable requirement because the complainant would have keys to all of the apartments when he assumed the full duties of the position and that the residents of the apartment complex were generally elderly and vulnerable to fraud and theft. The Adjudicator found that the complainant's employment was not terminated because of his criminal record or because he could not produce documentation by the required deadline. His employment was terminated because he demonstrated little interest in doing his job, walked away from tasks before they were completed, and was argumentative and defensive.
The complaint was dismissed.
Ursel v. LMG Properties Ltd. (O/A Bay Hill Inns & Suites)
(2009)(Adjudication)
SUMMARY
The complainant filed a complaint against the respondent hotel owners under section 13 of The Human Rights Code alleging that they failed to accommodate her disability by providing her with a wheelchair accessible hotel room.
The complainant alleged that she had rented a room from the respondents on four previous occasions and found them to have offered a very suitable and accessible room. On the date in question she tried to rent the room and was advised that the respondents no longer had an accessible room. The complainant alleged that there were no other wheelchair accessible rooms available in the town. The respondents were not present at the hearing.
The Adjudicator found that since the room had been available and was no longer available, there was no bona fide or reasonable cause existing for the discrimination, nor was there any evidence that the respondent had taken reasonable steps to mitigate or avoid contravention of The Code.
Remedy: The Adjudicator ordered that within 60 days of the date of the decision, an implementation plan be filed by the respondents with a copy to the complainant and the Manitoba Human Rights Commission, dealing with the availability of the wheelchair accessible suite in the hotel and that the Commission monitor that situation for 2 years. The complainant was awarded general damages in the amount of $3,000.
L.H. v. Vietnamese Non-Profit Housing Corp.
(2007)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging that the respondent had failed to accommodate her due to her physical disability.
The complainant alleged that she had worked as a caretaker for the respondent housing corporation. She had cancer, was scheduled for surgery and requested time off to recover. The respondent argued that the complainant's employment terminated on the basis that she was unable to fulfill her employment contract due to poor health. The respondent had informed the complainant that if she was not available for work, she did not have a job.
The Adjudicator accepted the respondent's explanation that it was unaware of its duty to accommodate the complainant but found that it had discriminated against her.
Remedy: The complainant was awarded $1,228.17 as compensation for lost wages, and $3,000 for injury to dignity.
A. v. Natural Progress Inc. et al.
(2005)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Manitoba Human Rights Code alleging that she was discriminated against when her employment was terminated because she has a physical disability.
The complainant alleged that she was hired to work in the kitchen at a business comprised of gas service, a convenience store and restaurant. She alleged that a few days after telling her employer that she suffered from Hepatitis C, her shifts were reduced, she was sent to work as a cashier and then her employment was terminated. The respondent had contacted a public health nurse to obtain more information about Hepatitis C and was reassured that the business' standard kitchen procedures were sufficient to deal with any risk of transmission of the disease and that persons with this disease are not considered to raise any health risks for the food industry. Despite being provided with this information, the respondent terminated the complainant's employment.
The Adjudicator found that the complainant's employment was terminated because of her disability. Although the respondent had a legitimate need for information, sufficient information was supplied to him to allay his concerns. The respondent was not able to justify the discriminatory conduct.
Remedy: The complainant was awarded $2,000 in damages as compensation for injury to her dignity, feelings and self respect. This was the amount sought by the Manitoba Human Rights Commission on the complainant's behalf, not because it considered this amount fair, but because she is on social assistance and anything greater would be clawed back by the government. The respondents were also ordered to refrain from discriminating against other persons with Hepatitis C in the future.
Reprisal
Richard v. Brandon Youth Hockey Assn. Inc.
(2006)(Adjudication)
SUMMARY
The complainant filed a complaint on behalf of his son under section 20 of The Human Rights Code alleging that his son was denied the opportunity to play hockey for the respondent because he had previously filed a human rights complaint against the respondent.
The Adjudicator found that the complainant's first complaint had been filed and was still pending when the respondent refused to register the complainant's son's application to play hockey on any of its teams because there was an active human rights complaint against the respondent association.
Remedy: The complainant was awarded $2,000 to compensate his son for injury to dignity, feelings and self-respect.
All Summaries and Decisions
Kallen v. Midwest Pallet Works Ltd.
(2012)(Adjudication)
SUMMARY
The complainant filed a complaint against her employer on the basis of disability and marital status under section 14 of The Human Rights Code alleging that her employer (the President was formerly her common law partner) failed to accommodate her by allowing her to continue on the company benefit plan, while she was away from work due to a back injury and collecting workers compensation benefits.
Despite numerous attempts, the Commission was unable to contact the complainant to confirm that she intended to pursue her complaint at a hearing and to gather evidence required to establish her compla
A hearing was convened via teleconference. The Commission and the respondent attended. The complainant did not attend. The Commission made a preliminary motion to have the complaint dismissed.
The Adjudicator found that it was no longer in the public interest that the matter should continue, given that the complainant did not appear to be willing to pursue her complaint and because the Commission has conduct of the complaint and could not communicate with her.
The complaint was dismissed without costs.
Canadian Blood Services v. Manitoba Human Rights Commission and X
(2011)(Judicial Review)
SUMMARY
The applicant filed an application for judicial review of the Board of Commissioner's decision to accept jurisdiction of a complaint by X against Canadian Blood Services under section 13 of The Human Rights Code. The complainant alleged that Canadian Blood Services' donor screening criteria that prohibits a man who has had sex with another man, even once since 1977, from donating blood, discriminated against him on the basis of sexual orientation.
The Manitoba Human Rights Commission argued that the Board's decision to accept jurisdiction was correct as Canadian Blood Services activities fall under the provincial jurisdiction over health. Canadian Blood Services argued that its activities and its license to operate is governed by the Food and Drugs Act and its regulations which valid federal regulation and accordingly, any change to the donor screening criteria must be approved by Health Canada and the Commission does not have jurisdiction over Health Canada.
The Court accepted that Canadian Blood Services is subject to federal law and regulation and that a change to its establishment license must be approved by Health Canada. The Court considered the legal doctrine of paramountcy to determine if there was in fact an operational conflict between The Human Rights Code and the applicable provisions in the Food and Drugs Act. It found that although the Food and Drugs Act and its regulations do not expressly mandate that the donor screening criteria be followed, Canadian Blood Services must comply with its licence requirements, and to make a change to the donor screening criteria would put Canadian Blood Services in violation of its establishment licence and the Food and Drugs Act and its regulations. Further, the Court found that allowing the Commission to deal with the complaint would frustrate the real purpose of regulating blood safety.
Remedy: Canadian Blood Services was granted an order of certiorari and prohibition as requested and was issued a declaration that the Manitoba Human Rights Commission does not have jurisdiction to proceed with the complaint, and in fact X can file a similar complaint with the Canadian Human Rights Commission if he so wishes.
Korsch v. Pritchard Engineering Company Limited
(2011)(Judicial Review)
SUMMARY
Summary not available
Pollock v. Winnipeg Condominium Corporation No. 30
(2011)(Adjudication)
Summary not available
Willcox v. Ladco Company Limited o/a Lakewood Agencies
(2011)(Adjudication)
Summary not available
Hiebert v. Martin - Liberty Realty Ltd.
(2009)(Adjudication)
SUMMARY
The complainant filed a complaint against the respondent under section 16 of The Human Rights Code alleging that she was discriminated against on the basis of her family status when the respondent denied her the opportunity to rent an apartment, without a reasonable excuse.
The complainant had a young child and is a single mom. The respondent informed her that they rented only ground-floor apartments to families with children, in order to protect other tenants from noise, but there were no ground-floor apartments available at the time.
The Adjudicator found that trying to prevent excess noise was a legitimate goal for a landlord, but concluded that it did not necessarily have to restrict families with children from renting second or third-floor apartments in order to accomplish this. The respondent had not asked the complainant for references, nor had any other alternatives been explored. The Adjudicator found that the respondent's "ground-floor-only" policy discriminated on the basis of family status.
Remedy: The complainant $1,000 for the distress and injury to dignity caused by the discrimination.
Penner v. Fort Garry Services Inc.
(2009)(Adjudication)
SUMMARY
The complainant filed a complaint against his former employer under section 14 of The Human Rights Code alleging that he had been discriminated against on the basis of a criminal record when he was not provided with adequate opportunity within which to provide documentation of his criminal record and was terminated from his employment.
The complainant alleged that he had notified his employer during the interview process for a caretaker position in an apartment complex that he had been convicted on two occasions for "driving under the influence" of alcohol. He was advised that he would be considered "in training" and would not assume the full responsibilities of the position until he produced the documentation evidencing his criminal record. The respondent requested that he provide the documentation by a certain date, which was not possible, and ultimately terminated his employment before the deadline in any event.
The Adjudicator accepted that the criminal record check was a reasonable requirement because the complainant would have keys to all of the apartments when he assumed the full duties of the position and that the residents of the apartment complex were generally elderly and vulnerable to fraud and theft. The Adjudicator found that the complainant's employment was not terminated because of his criminal record or because he could not produce documentation by the required deadline. His employment was terminated because he demonstrated little interest in doing his job, walked away from tasks before they were completed, and was argumentative and defensive.
The complaint was dismissed.
Ursel v. LMG Properties Ltd. (O/A Bay Hill Inns & Suites)
(2009)(Adjudication)
SUMMARY
The complainant filed a complaint against the respondent hotel owners under section 13 of The Human Rights Code alleging that they failed to accommodate her disability by providing her with a wheelchair accessible hotel room.
The complainant alleged that she had rented a room from the respondents on four previous occasions and found them to have offered a very suitable and accessible room. On the date in question she tried to rent the room and was advised that the respondents no longer had an accessible room. The complainant alleged that there were no other wheelchair accessible rooms available in the town. The respondents were not present at the hearing.
The Adjudicator found that since the room had been available and was no longer available, there was no bona fide or reasonable cause existing for the discrimination, nor was there any evidence that the respondent had taken reasonable steps to mitigate or avoid contravention of The Code.
Remedy: The Adjudicator ordered that within 60 days of the date of the decision, an implementation plan be filed by the respondents with a copy to the complainant and the Manitoba Human Rights Commission, dealing with the availability of the wheelchair accessible suite in the hotel and that the Commission monitor that situation for 2 years. The complainant was awarded general damages in the amount of $3,000.
Manitoba High Schools Athletic Assn. Inc. v. Pasternak
(2008)(Manitoba Court of Queen's Bench)
SUMMARY
The respondent appealed the Adjudicator's decision that it had discriminated against the complainants on the basis of sex, to the Manitoba Court of Queen's Bench.
The Court considered the appropriate standard for judicial review and determined that the single standard for judicial review of questions of fact, or of mixed fact and law, is "reasonableness". The standard of review for questions of law and jurisdiction is correctness.
The Court considered in particular, whether the Adjudicator had erred by not requiring the complainants to prove injury to dignity as an element of discrimination. It was found that the Adjudicator did not err and that it was not obligated to apply the 2 step, Law test set out by the Supreme Court of Canada in cases involving non-governmental actors. It noted that the Law test was developed in the Charter context and the Charter applies only to public actors. The Law test been applied in human rights complaints where government benefit schemes are involved, where arguably there is an overlap between Charter and statutory human rights protections, but has not been applied in complaints against private entities. The Court found that the Adjudicator had correctly focused on the differential treatment of the complainants and the adverse effects on them as a result of the respondent's actions, in determining that there was a prima facie case of discrimination. The Court did note, however, that even under the Law test, there was no error because the Adjudicator had applied a substantive equality approach, which focused on the judging the complainants on their personal merit rather than their gender. Further there was no error in finding that the respondent had failed to prove that being male was a bona fide qualification for participation on the team, which is a question of mixed fact and law. The Adjudicator's findings were determined to be based on reasonable assumptions and analysis and were also correct in the circumstances.
The Court upheld the Adjudicator's award of general damages and affirmed that the complainants be provided with coaching support and be allowed a session at hockey school to catch up on what they had missed during their period of exclusion. The Court noted that although it would not have made this order, there was a rational basis for the Adjudicator's decision.
The appeal was dismissed, with costs awarded to the Manitoba Human Rights Commission.
L.H. v. Vietnamese Non-Profit Housing Corp.
(2007)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging that the respondent had failed to accommodate her due to her physical disability.
The complainant alleged that she had worked as a caretaker for the respondent housing corporation. She had cancer, was scheduled for surgery and requested time off to recover. The respondent argued that the complainant's employment terminated on the basis that she was unable to fulfill her employment contract due to poor health. The respondent had informed the complainant that if she was not available for work, she did not have a job.
The Adjudicator accepted the respondent's explanation that it was unaware of its duty to accommodate the complainant but found that it had discriminated against her.
Remedy: The complainant was awarded $1,228.17 as compensation for lost wages, and $3,000 for injury to dignity.
Richard v. Brandon Youth Hockey Assn. Inc.
(2006)(Adjudication)
SUMMARY
The complainant filed a complaint on behalf of his son under section 20 of The Human Rights Code alleging that his son was denied the opportunity to play hockey for the respondent because he had previously filed a human rights complaint against the respondent.
The Adjudicator found that the complainant's first complaint had been filed and was still pending when the respondent refused to register the complainant's son's application to play hockey on any of its teams because there was an active human rights complaint against the respondent association.
Remedy: The complainant was awarded $2,000 to compensate his son for injury to dignity, feelings and self-respect.
Thorvaldson Care Homes Ltd. v. Budge
(2006)(Manitoba Court of Appeal)
SUMMARY
The respondent against whom the original complaint was filed, further appealed the Adjudicator's decision that the complainant had been harassed within the meaning of The Human Rights Code, to the Manitoba Court of Appeal.
The Court noted that the Court of Queen's Bench had not addressed the applicable standard of review at the first level of appeal, but that it was apparent from her reasons, that she applied the appropriate standard when dismissing that appeal; the standard of correctness. The Court of Appeal found that regardless of whether the appropriate standard of review was one of patent unreasonableness or correctness, there was no merit to the appellant's grounds of appeal.
The appeal was dismissed with costs.
Pasternak v. Manitoba High Schools Athletic Association Inc. (No. 2)
(2006)(Adjudication)
SUMMARY
Two sisters filed complaints against the respondent high school athletic association under section 13 of The Human Rights Code alleging discrimination on the basis of sex because they were not permitted to try out for the men's hockey team.
The complainants alleged that they had played boys' hockey since they were young and that in Grade 10, they were signed up to try out for the men's hockey team. That year, for the first time, the respondent had established a women's hockey team and the complainants were advised that they had to try out for the women's team, because there was one. The complainants alleged that they clearly had competitive skills and therefore this rule was discriminatory. The respondent argued that the complainants should play on the women's team because they would help the less skilled women to play better and that allowing some women to play on men's teams on the basis of merit would have the effect of undermining the development of women's hockey.
The Adjudicator found that the respondent's rule was discriminatory on the basis of sex, as the women's team did not offer the same level of play and competition as the men's team. The complainants were denied the opportunity to be judged on the basis of their merit because they were not able to try out.
Remedy: The respondent was ordered to remove the requirement that females try out and play on female-only hockey teams if the school has one, and awarded the complainants compensation for their loss of skills during the 2004–2006 period by way coaching support and hockey school opportunities. The complainants were awarded general damages of $3,500 each, as compensation for the injury to their dignity caused by the discrimination.
Pasternak v. Manitoba High Schools Athletic Assn. Inc. (No. 1)
(2006)(Adjudication)
SUMMARY
Two sisters filed complaints against the respondent high school athletic association under section 13 of The Human Rights Code alleging discrimination on the basis of sex because they were not permitted to try out for the men's hockey team.
The Adjudicator made a preliminary decision with respect to jurisdiction and determined that (1) the respondent was correctly named as a party as it makes provincial athletic competition available to high school students, (2) the complainants were entitled to file a complaint whether or not the respondent's internal appeal process had been exhausted and (3) the services provided are available to the public within the meaning of The Code. Accordingly, the Adjudicator was found to have jurisdiction to hear the complaints.
J.D. v. C.N.
(2005)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that she was sexually harassed by her supervisor.
The complainant alleged that rather than taking reasonable steps to end the harassment, the respondent terminated her employment. She alleged that she was subjected to a sexual solicitation and advance by her supervisor and that when she rejected him, he began to treat her differently. She notified the owner of the company of the situation who told her to "wait and see". Ultimately, the respondent owner terminated the complainant's employment informing her that her complaint of harassment was one of the reasons for the termination.
The Adjudicator found that text message exchanged between the complainant and her supervisor might have given the supervisor reason to believe that his sexual advance would be welcome, however his subsequent advance and his punitive conduct after his advance was rejected, amounted to harassment. The Adjudicator found that the respondent did not definitively deal with the complaint of harassment, and that he terminated the complainant's employment because she was "threatening" to make a human rights complaint.
Remedy: The complainant was awarded $3,250 as compensation for lost wages and $1,500 for injury to dignity.
A. v. Natural Progress Inc. et al.
(2005)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Manitoba Human Rights Code alleging that she was discriminated against when her employment was terminated because she has a physical disability.
The complainant alleged that she was hired to work in the kitchen at a business comprised of gas service, a convenience store and restaurant. She alleged that a few days after telling her employer that she suffered from Hepatitis C, her shifts were reduced, she was sent to work as a cashier and then her employment was terminated. The respondent had contacted a public health nurse to obtain more information about Hepatitis C and was reassured that the business' standard kitchen procedures were sufficient to deal with any risk of transmission of the disease and that persons with this disease are not considered to raise any health risks for the food industry. Despite being provided with this information, the respondent terminated the complainant's employment.
The Adjudicator found that the complainant's employment was terminated because of her disability. Although the respondent had a legitimate need for information, sufficient information was supplied to him to allay his concerns. The respondent was not able to justify the discriminatory conduct.
Remedy: The complainant was awarded $2,000 in damages as compensation for injury to her dignity, feelings and self respect. This was the amount sought by the Manitoba Human Rights Commission on the complainant's behalf, not because it considered this amount fair, but because she is on social assistance and anything greater would be clawed back by the government. The respondents were also ordered to refrain from discriminating against other persons with Hepatitis C in the future.
Thorvaldson Care Homes Ltd. v. Budge
(2005)(Manitoba Court of Queen's Bench)
SUMMARY
The respondent appealed the Adjudicator's decision that the complainant had been harassed within the meaning of The Human Rights Code to the Manitoba Court of Queen's Bench.
The Court was satisfied that the Adjudicator had been in compliance with The Human Rights Code, the principles of natural justice and was procedurally fair.
The appeal was dismissed.
Dubeck v. C.F.
(2002)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging that she was discriminated against on the basis of her sex.
The complainant alleged that she was hired as a labourer but was not permitted to work on certain jobs and was ultimately laid off because she was female. The respondent did not provide any justification for these actions.
The Adjudicator found on the evidence that the respondent's decision to deny a specific job opportunity to the complainant and to lay her off was as a result of her being female.
Remedy: The complainant was awarded $600 for lost wages, $1,500 in general damages for injury to her feelings, in addition to $750 as exemplary damages, and $620.36 for expenses incurred because of the discrimination.
The original Adjudication finding of harassment was upheld by the Manitoba Court of Queen's Bench and the Manitoba Court of Appeal.
Budge v. Thorvaldson Care Homes Ltd.
(2002)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that she was sexually harassed by a co-worker and that rather than taking reaso
The complainant alleged that she had notified her supervisor very soon after she was first subjected to the harassment but that nothing was done about it. Many months later she again reported the harassment to the president and two days later her employment terminated. The respondent argued that the complainant had engaged in a plot with a fellow co-worker to damage the business by quitting just before Christmas and that the harassment allegations were not credible.
The Adjudicator found that the comments and behaviour that the complainant was subjected to by her co-worker were unwelcome and constituted harassment. The Adjudicator also found that the respondent had been informed of the harassment a considerable time before the termination of her employment and was aware, or should have been aware, that there was a serious problem of sexual harassment in the workplace, but failed to take reasonable steps to treat the issue as pressing and serious. The Adjudicator determined that the termination of the complainant's employment was due, at least in part, to her having made allegations of harassment.
Remedy: The respondent was ordered to develop a sexual harassment policy in co-operation with the Manitoba Human Rights Commission and to provide to the Commission, for a period of 2 years, information regarding every female employee who enters or leaves employment, along with any other information the Commission may require to ensure that The Human Rights Code is being complied with. In addition, the complainant was awarded 3 months' salary and benefits as compensation for lost wages and $4,000 for injury to dignity.
Morriseau v. Paisley Park
(2000)(Adjudication)
SUMMARY
The complainant filed a complaint against the owners of a store alleging discrimination on the basis of family status and sex, including pregnancy or circumstances related to pregnancy, because she was not allowed to breastfeed her child in the respondent's store.
The complainant alleged that she had tried to breastfeed her six month old daughter in the store but was asked by the owner to go outside to the courtyard in order to breastfeed.
The Adjudicator considered the respondent's duty to accommodate the complainant and determined that a reasonable accommodation was a place for the complainant to sit that was clean, comfortable, and somewhat private. The courtyard offered was found to be as suitable, secure and comfortable for the complainant to breastfeed her daughter as the chair she used in the store. In considering the complainant's argument that the courtyard amounted to segregation and represented outdated and sexist attitudes, the Adjudicator noted that even if that were the attitude of the respondents in this case, it would not make a difference to the outcome in the case. The question is only what is the effect of the conduct on the person entitled to protection. The Adjudicator concluded that the respondent offered to reasonably accommodate the complainant.
The complaint was dismissed.
Schroen v. Steinbach Bible College
(1999)(Adjudication)
SUMMARY
The complainant filed a complaint against a prospective employer under section 14(1) of The Manitoba Human Rights Code alleging discrimination on the basis of religion.
The complainant alleges that she grew up in the Mennonite faith but at the time of applying for a position as an accounting clerk, was a Mormon. She was awarded the position, but her employment was terminated two days later when the respondent became aware that she was not a Mennonite.
The Adjudicator found that the complainant was terminated from her employment for reasons related to her religion. The Adjudicator found, however, that being a Mennonite was a bona fide and reasonable occupational requirement, given that the respondent college operates as a tightly knit community and it was assumed that the complainant would interact with students, attend functions, invite students to her home, and be available to talk to them about her faith.
The complaint was dismissed.
Bourrier v. Phil-Can Services Limited et al.
(1999)(Adjudication)
SUMMARY
The complainant filed a complaint against a prospective employer under section 19 of The Human Rights Code alleging that he had made a sexual solicitation of her during the interview process for a job for which she had applied.
The complainant alleged that she had made it known to the respondent that she disapproved of his hiring methods and was not contacted by the respondent again. The respondent did not attend the hearing.
The Adjudicator found that the complainant was subject to a sexual solicitation from a person in a position to confer a benefit and given that the solicitation was made as a prerequisite to a job offer, the respondents knew or ought reasonably to have known that it was unwelcome.
Remedy: The complainant was awarded general damages for injury to dignity, feelings and self respect in the amount of $1,000 in addition to exemplary damages in the amount of $1,000, jointly and severally as against the respondent. The respondent was also ordered to notify the Manitoba Human Rights Commission for a period of 5 years, of any hiring activity, including names, addresses and phone number of all persons interviewed for positions, identity of successful applicants, date of departure from employment of any employees and the ostensible reason for departure, coupled with an entitlement for the Commission to audit the books of any such business or company with respect to its employment practices during the time of that order.
Werestiuk v. Small Business Services Inc. et al.
(1998)(Adjudication)
SUMMARY
The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging sexual harassment based on a single incident in which her employer invited her to meeting to discuss business which led to him taking her to a hotel where he made sexual advances towards her.
The respondent chose not to give evidence at the hearing.
The Adjudicator found that the respondent was clearly in a position of authority and therefore the onus shifted to the respondent to demonstrate that his advances were welcome. The Adjudicator found that the respondent should reasonably have known that his conduct would be unwelcome.
Remedy: The complainant was awarded lost wages for time from the date of the incident until she found alternate employment as well as lost wages for the period owing for time prior to that, on the basis that they constituted a benefit lost as a result of the contravention of The Code. The complainant was also awarded general damages for injury to dignity, feelings or self respect in the amount of $2,000 in addition to exemplary damages in the amount of $1,000. A monitoring order permitting the Manitoba Human Rights Commission to monitor the employment practices of the respondents for a period of 2 years from the date of the decision was also ordered.
Vogel v. Manitoba (No. 4)
(1997)(Adjudication)
SUMMARY
The adjudication continued as directed by the Court of Appeal, to consider specifically the provisions in The Human Rights Code that allow bona fide and reasonable cause for the discrimination.
The Adjudicator found that the respondents were able to demonstrate bona fide and reasonable cause for denying benefits to homosexual civil servants, only with respect to the pension plan and not with respect to any of the other employee benefits. The Adjudicator considered that the complainant's same-sex partner was not entitled to claim benefits under the following components of his partner's employee benefits package: dental; extended health care; ambulance, hospital and semi-private plan (AHSP); and pension plan. It appeared that he could claim benefits under the group life insurance policy.
The Government did not bring any evidence to demonstrate that there was bona fide and reasonable cause for excluding the complainant's same sex partner from the extended health plan and group life insurance. The extended health plan premiums were paid directly by employees, so the Government incurs no additional cost by extending this benefit to same-sex couples. The group life insurance policy did not appear to exclude same-sex couples, so the Adjudicator assumed that the insurer would honour their claims and that it would have structured its premiums accordingly.
With respect to the dental plan and the AHSP, the complainants acknowledged that costs would increase but that would still not excuse discrimination unless the increased costs would render the plan non-viable. The Government argued that the provisions in the collective agreement had been fairly negotiated between the Government and the Union and were therefore bona fide and reasonable. The Government also argued that the adjudicator should consider the additional costs and administrative burden of expanding protection from discrimination, as well as the social, legal and political context of benefit programs.
With respect to the pension plan, the complainants acknowledged that expanding coverage to same-sex spouses would contravene the federal Income Tax Act, therefore jeopardizing the plan and accordingly, requested the Government create a separate program that would give affected persons a comparable benefit, or alternatively, declare an entitlement to equivalent benefits to take effect whenever the Income Tax Act be amended to permit it. The Government emphasized that deregistration of the plan would have substantial consequences on all employees as would creating an offside arrangement outside of the plan.
The Adjudicator ultimately found that there was no bona fide and reasonable cause for the discriminatory denial of the extended health care, group life insurance, dental and AHSP plans to homosexual civil servants involved in same-sex relationships. It also found that the Government had shown bona fide and reasonable cause to justify continued discriminatory denial of benefits with respect to the pension plan.
The appeal was therefore allowed in part.
Remedy: Benefits, other than those related to the pension plan, were ordered to be extended accordingly and it was noted that the group life plan benefits may already have been expended. If the Income Tax Act were to be amended, the Government should implement appropriate changes to the pension plan however that was not made a conditional order. No damages were sought by the complainants or awarded.