Adjudication and Decisions

Some human rights complaints are not resolved successfully through mediation. These cases are reviewed by the Board of Commissioners after an investigation has taken place. When all attempts to mediate have failed, and if the Board believes there is sufficient evidence to support a contravention of The Code, the Board will ask the Chief Adjudicator, who is appointed by the Government, to call on a human rights adjudicator to hear the case.

The human rights adjudicator is independent and does not work for the Commission.

Once the date is set, a notice of a public hearing is published in the Winnipeg Free Press and on the Commission's website.

An average hearing takes two to three days at which time arguments are heard, witnesses called and documents entered as evidence. These hearings are open to the public.

The Commission has "carriage of the complaint" and so presents it to the Adjudicator. Either party can have a lawyer but it is not necessary. Decisions are issued in writing after the hearing and are published on the Commission's website.

For more detailed information see A Guide to a Human Rights Hearing

The following are summaries and complete decisions between 1999 to the present.

Summaries and Complete Decisions

Discrimination based on Protected Characteristics

Ancestry
Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell – April 2016

Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell
(April, 2016)

Full text decision

Criminal Record
Penner v. Fort Garry Services Inc. - November 2009

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.

Full text decision

Disability
Gordan v. Winnipeg Corporation No. 30 – June 2016

Gordan v. Winnipeg Corporation No. 30
June 2016

Full text decision

Renard v. Winnipeg Corporation No. 30 – June 2016

Renard v. Winnipeg Corporation No. 30
June 2016

Full text decision

Collette v. St. Adolphe Personal Care Home Inc. et al. - September 2015

Collette v. St. Adolphe Personal Care Home Inc. et al.
September 2015

Full text decision

Horrocks v. Northern Regional Health Authority - September 2015

Horrocks v. Northern Regional Health Authority
(2015)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of her disability (addiction to alcohol) and by failing to accommodate her special needs based on her disability and instead, terminated her employment.

The complainant entered into an agreement with her union and the employer that provided that she would, amongst other things abstain from alcohol both on and off work. While the complainant initially refused to sign the agreement and was terminated for failing to do so, she grieved that termination and began further discussions about the terms on which she would return to work. After being off work for a considerable period of time, she agreed to sign the agreement and abstain as required. Prior to returning to the workplace, the respondent employer terminated her employment on the basis of two reports that the complainant had been seen in the community and appeared to have been drinking

The respondent raised an issue regarding the jurisdiction of the adjudicator to consider a human rights matter that arises from a unionized workplace, arguing that the exclusive, or alternatively, more appropriate forum to consider the matter would be a labour arbitration. The respondent also argued that labour arbitrators have argued that signing a total abstinence clause was a bona fide occupational requirement of her position and further, that the agreement containing the total abstinence clause was a form of reasonable accommodation.

On the issue of jurisdiction, the Adjudicator determined that the essential character of the dispute between the parties fell within her jurisdiction as a human rights adjudicator. She found that she had jurisdiction to determine whether the complainant experienced discrimination in the manner alleged in the complaint and that in doing so, she would have to examine not only the terms of the settlement agreement but also the totality of the interactions between the parties.

She found that the complainant had been discriminated against on the basis of her addiction and that the respondent had not engaged in a process to determine her special needs based on her addiction that would result in an accommodation process. She also found that the respondent had not satisfied the requirement to substantively accommodate the complainant’s disability-related needs and instead terminated her employment.

Remedy: The complainant was awarded $10,000 in compensation for injury to her dignity, self respect and feelings. She was ordered to be reinstated to her former position with an accounting for her any loss of seniority, benefits or other financial loss upon being assessed by a professional with expertise in treating individuals with alcohol addiction to determine if she requires any accommodation. She was also awarded lost wages from the date that she was initially suspended from the workplace to the date of hearing. The respondent was ordered to develop a reasonable accommodation policy.

Full text decision

Nachuk v. City Of Brandon (Brandon Police Services) April 2014

Nachuk v. City Of Brandon (Brandon Police Services)
(2014)(Adjudication- Preliminary Matter)

SUMMARY

The respondent made a motion, pursuant to section 37.1 of The Human Rights Code, to terminate the adjudication of the complaint on the basis that the respondent had made a reasonable settlement offer, that the complainant rejected.

The complainant filed a complaint against the Respondent under section 13 of The Human Rights Code alleging that the Respondent discriminated against him on the basis of his disability including the reliance on a service animal, when three on-duty police officers insisted that he leave an establishment.

The respondent offered the complainant $5,500 to compensate for injury to his dignity, feelings, or self-respect.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true. He considered the policy underlying section 37.1, that the adjudicative process should not expend resources to adjudicate a complaint where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that the offer of $5,500 for injury to the complainant’s dignity, feelings, or self-respect failed to reasonably approximate what an adjudicator would award under this remedial heading, in part because none of the cases relied on by the respondent in support of its offer involved the contravention of The Human Rights Code by police officers in the execution of their duty. He also considered the complainant’s vulnerability in the situation and that injury to his dignity would be exacerbated as a result.

The Adjudicator determined that the complainant was not entitled to legal costs and that he did not need to decide on exemplary damages for any malice or recklessness involved in the contravention as he had already determined that the offer was not reasonable.

The Adjudicator dismissed the respondent’s motion.

Remedy:

Full text decision

Dick v. The Pepsi Bottling Group (Canada), Co. - April 2014

Dick v. The Pepsi Bottling Group (Canada), Co.
April 7, 2014

Full text decision

Brockmeyer v. The Cornerstone Housing Corporation o/a The Cornerstone Life Lease Estates - February 2014

Brockmeyer v. The Cornerstone Housing Corporation o/a The Cornerstone Life Lease Estates
February 13, 2014

SUMMARY

The complainant filed a complaint against her landlord alleging that it had failed to reasonably accommodate her disability related needs, which included taking adequate steps to determine the nature of those needs or to accommodate them to the point of undue hardship.

The complainant alleged that prior to signing the lease she and her mother had communicated that her mother had a need for grab bars in the bathroom and to able to use certain aides including a bath lift and toilevator in her suite. The complainant alleged that she made ongoing requests to ensure that the suite was modified prior to her mother occupying the suite and that she be permitted to view the suite during construction to enable her to determine if any modifications were required in respect to utilizing the aides in the suite.

The respondent argued that it reasonably accommodated the complainant's needs and that any changes that were to be made to the suite could have been done at the complainant's own cost and after occupancy.

The Adjudicator granted the Commission's request to amend the complaint to allege a contravention of section 16 of The Human Rights Code which specifically prohibits discrimination in housing.

The Adjudicator determined that the landlord's duty to accommodate included a duty to consent, on reasonable terms, to modifications to private living space to meet the special needs of a tenant and found that in this case, the complainant had the primary responsibility for proposing accommodation measures. The Adjudicator found custom modifications to private living space to fall into a different category than modifications to common living space in a condominium complex for example and concluded that the landlord did not have an obligation to pay for any of the modifications to the suite unless it could be shown that the landlord's failure to provide reasonable accommodation materially increased the costs of the work.

The Adjudicator was satisfied that the construction was behind schedule and that it would have been an undue hardship for the landlord to have arranged for the modifications to be made prior to the complainant taking occupancy and that it was not reasonable to expect the landlord to have shared the dimensions of the bath tub and similar information with the complainant.

The Adjudicator determined the landlord had satisfied its obligations to provide reasonable accommodation of the complainant's disability related.

The complaint was dismissed.

Remedy:

Full text decision

C.R. v. Canadian Mental Health Association Westman Region Inc. - April 2013

C.R. v. Canadian Mental Health Association Westman Region Inc.
April 2013, Recalculation

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of a perceived disability (addiction to alcohol) by failing to accommodate her special needs based on her disability and instead, terminated her employment.

On January 7, 2013, the Adjudicator had determined that the respondent breached section 14 of The Code and had ordered the respondent to pay the complainant $1,894.20 to compensate her for lost wages and $4,000.00 to compensate her for injury to her dignity, feelings and self-respect. The Adjudicator had based the calculation of lost wages on certain documents produced at the hearing and indicated that if the calculation was incorrect, she would resolve any issues arising in that regard.

On January 9, 2013, the Commission and the complainant jointly submitted a request to the Adjudicator to recalculate the award of lost wages. Amongst other things, it was argued that the complainant's payment in lieu of notice which was relied upon to calculate the award of lost wages had been miscalculated by the respondent.

The Adjudicator relied on the doctrine of functus officio to determine that she did not have the authority to amend the award for lost compensation and further, that if she did have the authority, she did not consider it appropriate to do so given the evidence provided and because the parties had a full opportunity to address the issue at the hearing of the complaint.

The request for a recalculation of the award of lost wages was denied.

Remedy:

Full text decision

K.K. v. G.S. c.o.b. Hair Passion - January 2013

K.K. v. G.S. c.o.b. Hair Passion
(January 2013)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of her disability (bi-polar depression) and by failing to accommodate her special needs based on her disability and instead, terminated her employment.

The complainant alleged that while her employer had been a good friend to her and had accommodated her disability during her employment, she failed to reasonably accommodate her disability when she ultimately terminated her employment during a period of hospitalization. The respondent argued that it would have been an undue hardship to continue to employ the complainant given that her performance had declined and she was losing business.

The Adjudicator found that the complainant's disability impacted her performance sufficiently to conclude that it was an indirect or motivating factor in the respondent's decision to terminate her employment. The Adjudicator found that the respondent satisfied the procedural and substantive requirement to accommodate the complainant's disability during the course of her employment, but failed to show that it was justified in terminating the complainant's employment when it did.

Remedy: The complainant was awarded $2000 in general damages for injury to her dignity, self respect and feelings. The Adjudicator declined to make an award for any other financial losses because she did not have sufficient evidence that the complainant could have returned to perform the essential duties of her position. The Adjudicator was satisfied that the respondent was generally aware of its duty to accommodate and found it would serve no "useful purpose" to require the respondent to develop an accommodation policy.

The Adjudicator granted the Commission's request to identify the complainant by her initials only given the sensitive nature of the information disclosed at the hearing.

Full text decision

C.R. v. Canadian Mental Health Association Westman Region Inc. - January 2013

C.R. v. Canadian Mental Health Association Westman Region Inc.
(2013)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of disability (addiction to alcohol) by failing to reasonably accommodate her special needs based on her disability and instead, terminated her employment.

The respondent took the position that the complainant's employment was terminated for misappropriation of funds.

The Adjudicator determined that although there was not sufficient evidence to establish the complainant had an addiction to alcohol, there was sufficient evidence to establish that the respondent perceived her to have an addiction to alcohol and therefore a disability, which equally attracts protection under The Code.

The Adjudicator determined that the complainant's disability was a factor in the respondent's decision treatment of the complainant leading up to the termination of her employment and the termination of her employment itself. She did not accept that the termination of the complainant's employment was based solely on misappropriation of funds and was not convinced that the evidence established any misappropriation of funds at all.

She determined that the respondent has not satisfied its onus of establishing, on the balance of probabilities, that there was a bona fide or reasonable cause or justification for its treatment of the complainant or that reasonable accommodation was made or was not possible in the circumstances.

Remedy: The complainant was awarded lost wages in the amount of $1894.20, equivalent to four weeks' wages and $4000 in damages for injury to the complainant's dignity, self respect and feelings. The Adjudicator also issued a monitoring order which would allow the Commission to monitor the respondent's employment practices for a period of two years.

Full text decision

Chestnut v. Theo C Limited o/a Hampton Inn & Suites - May 2012

Chestnut v. Theo C Limited o/a Hampton Inn & Suites
(2012)(Adjudication)

Full text decision

Kallen v. Midwest Pallet Works Ltd. - January 2012

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 complaint.

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.

Full text decision

Ursel v. LMG Properties Ltd. O/A Bay Hill Inns and Suites - June 2009

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.

Full text decision

L.H. v. Vietnamese Non-Profit Housing Corporation – March 2007

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.

Full text decision

A. v. Natural Progress Inc. or Little Chief's Place – January 2005

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.

Full text decision

Family Status
Hiebert v. Martin Liberty Ltd. – November 2009

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.

Full text decision

Morriseau v. Paisley Park – December 2000

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1997

Vogel v. The Government of 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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1996

Vogel v. The Government of 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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1995

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1992

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1991

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1983

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.

Full text decision

Religion
Schroen v. Steinbach Bible College - July 1999

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.

Full text decision

Sex
Szabo v.Cindy Dayman operating as Take Time Home Clean & Life Style Services – April 2016

Szabo v.Cindy Dayman operating as Take Time Home Clean & Life Style Services
(April, 2016)

Full text decision

Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell – April 2016

Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell
(April, 2016)

Full text decision

Blatz v 4L Communications Inc. - May 2015

Blatz v 4L Communications Inc.
(May 2015)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging that her employer discriminated against her by terminating her employment due to her pregnancy and/or the circumstances related to her pregnancy.

The complainant was the respondent’s General Manager and second in command. She advised her employer that she was pregnant and that she had required some accommodation during early pregnancy. She also alleged that her employer had not raised any concerns with her performance and that she had been rewarded for her performance with financial compensation and other rewards. She alleged that in the absence of performance concerns, her pregnancy was a factor, not the sole factor, but a factor in the employer’s decision. The respondent employer argued her employment was terminated because her performance was less than satisfactory and not because of her pregnancy.

The Adjudicator determined that the complainant’s pregnancy was not a factor in the respondent’s decision to terminate her employment and that the employer had plausible reasons unrelated to pregnancy for terminating her employment. The Adjudicator was not prepared to infer from the evidence presented at the hearing, that her pregnancy was a factor in the termination decision.

The Adjudicator therefore dismissed the complaint.

Full text decision

Emslie v. Doholoco Holdings Ltd. o/a The UPS Store #425- December 2014

Emslie v. Doholoco Holdings Ltd. o/a The UPS Store #425
(2014)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that the President and owner sexually harassed her.

The Respondent did not appear at the hearing.

The Adjudicator denied the Commission’s request to protect the complainant’s identity in the written reasons for his decision. The Adjudicator also denied the Commission’s request to amend the complaint to add the President as a respondent in his personal capacity.

The Adjudicator determined that the President was the directing mind of the respondent and in a position of authority over the complainant and that he not only made repeated sexual solicitations or advances towards the complainant, but also physically touched her several times, without her consent. The Adjudicator confirmed that the complainant was not required to object to the harassment at the time as the test is whether a reasonable person would realize the conduct was unwelcome. He noted that the complainant did tell the respondent that she found his conduct objectionable but the conduct did not cease and the complainant did not protest more forcefully for fear of losing her job.

Remedy: The Adjudicator awarded the complainant $15,000.00 in compensation for injury to her dignity, feelings, and self-respect resulting from the harassment and $16,317.55 in compensation for lost income. He also awarded the complainant $5,000.00 in exemplary damages because based on the malice and recklessness of the President’s actions. He further ordered the President to attend a workshop on sexual harassment and to provide evidence of this to the Commission. He also ordered the President to deliver to each employee of the Respondent a copy of the Commission’s policy on harassment and to provide to the Commission a signed acknowledgement from each employee that he or she has received the policy, within thirty days of his decision, and to develop and implement a sexual harassment policy satisfactory to the Commission in form and content, post it at each workplace that he operates and deliver a copy to each employee.

Full text decision

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube - June 2014

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube
(June 2014)

Full text decision

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube - August 2014

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube
(August 2014)

Full text decision

Jewish Community Campus of Winnipeg Inc. v. Metaser and Manitoba Human Rights Commission - December 2013

Jewish Community Campus of Winnipeg Inc. v. Metaser and Manitoba Human Rights Commission
(December 13, 2013)

Full text decision

Metaser v. Jewish Community Campus of Winnipeg Inc. - September 2013

Metaser v. Jewish Community Campus of Winnipeg Inc.
(September 24, 2013)

SUMMARY

The complainant filed a complaint against her employer under section 19 of The Human Rights Code alleging that her employer had failed to take reasonable steps to stop the sexual harassment she was subjected to by her supervisor.

The respondent made a settlement offer that the complainant rejected. The respondent subsequently requested that the adjudicator assess the reasonableness of its settlement offer under section 37.1 of The Human Rights Code.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true, on the basis that the parties and the adjudicative process should not expend resources to adjudicate a complaint, where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that to be reasonable, a settlement offer must take into account all of the remedial headings provided in subsection 43(2) of The Code.

He determined that the settlement offer reasonably ensured future compliance with The Code. The absence of any compensation for lost income was determined to be reasonable on the basis that the complainant had been provided with payment in lieu of notice under the Employment Standards Code following the termination of her employment. The offer of $5,250 was determined to be reasonable and within the range of what an adjudicator would award and the request for a limited release was found to be a reasonable means by which a party may seek some finality.

The adjudicator therefore terminated the adjudication of this complaint.

Remedy:

Full text decision

Garland v. Tackaberry operating as Grape and Grain - April 2013

Garland v. Tackaberry operating as Grape and Grain
(April 23, 2013)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer had failed to take reasonable steps to stop the sexual harassment she was subjected to by a customer of the store.

The Adjudicator denied the Commission's request to not identify the complainant in both the public notice of hearing and the written reasons for decision.

The Adjudicator determined that the complainant had been subjected to "a series of objectionable and unwelcome sexual solicitations or advances" on the basis of her sex, constituting sexual harassment. The Adjudicator noted that the underlying policy of section 19 "aims to ensure a workplace, where the dignity and value of individuals are respected and where the economic reality of dependence upon continuing wages does not somehow leave employees feeling trapped and required to suffer the grievous indignity that is harassment".

The Adjudicator rejected the respondent's suggestion that the complainant encouraged the harassment whether directly or by implication and dismissed the respondent's attempts to characterize the complainant on the basis of her sexuality and lifestyle as irrelevant.

He determined that the respondent was aware of the ongoing harassment and found that the respondent's suggestion that the complainant quit her job rather than enduring the harassment undermined the protection that The Code offers. The Adjudicator concluded that the respondent had failed to discharge the obligation imposed on an employer to take reasonable steps to terminate harassment.

Remedy: The Adjudicator awarded $7,750 in general damages for injury to the complainant's dignity, self-respect and feelings resulting from the harassment. The respondent was ordered to attend a workshop on harassment in the workplace and to provide to every new and future employee the respondent's policy on harassment in the workplace.

Full text decision

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall - November 2012

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall
(2012)(Reasonable Offer)

SUMMARY

The respondent made an application, pursuant to section 37.1 of The Human Rights Code that the adjudication of this complaint be terminated on the basis that the it had made a reasonable settlement offer which the complainant has rejected.

The respondent offered the complainant an all-inclusive amount of $4,000, which it argued was more than reasonable and ought to be sufficient to settle the complaint. The respondent argued that if the complainant is unwilling to accept that amount, the complaint ought to be dismissed pursuant to section 37.1.

In a joint submission, the Commission and the complainant argued that the offer was not reasonable and asked that the complaint proceed to adjudication as scheduled.

The Adjudicator set out the background information or facts contained in the materials submitted to her by counsel, but clarified that she was not making any findings of fact or findings on the merits of the complaint. She noted that the complaint was one of sexual harassment by the respondent owner against the complainant, who was only employed for approximately five months by the respondent. She confirmed that in deciding whether the Respondent's settlement offer is reasonable on this application, she had to proceed on the basis that the allegations as set forth in the complaint are proven.

The Adjudicator noted that the concept of reasonableness is different from that of appropriateness confirmed that the offer must therefore be assessed in the context of what the complainant could reasonably be expected to achieve before a board of adjudication, based on the allegations and any admissions which have been made, and the available remedies. She considered the range of general damages awards in Manitoba and what compensation, if any, might reasonably be awarded to the complainant for financial losses sustained, expenses incurred or benefits lost. She noted that because the allegations of the complainant suggested that the complainant was effectively forced out of her employment or constructively dismissed, as opposed to having quit, the respondent would reasonable be expected to put the complainant in the position she would have been in if the discrimination had not occurred, which differs from the remedy of reasonable notice or wages in lieu of notice in a claim for wrongful dismissal at common law, which depends on the length of time that an employee was employed. The Adjudicator noted that the offer does not contemplate any remedial measures in the public interest such as training or the circulation and posting of a harassment policy, but did not comment in detail on this point. The Adjudicator ultimately determined that the respondent's offer did not adequately address the relief which the complainant could reasonably expect to obtain under The Human Rights Code.

Full text decision

Pasternak v. Manitoba High School Athletic Association Inc. - September 2006

Pasternak v. Manitoba High Schools Athletic Association Inc. (No. 2)
(September 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.

Full text decision

Pasternak v. Manitoba High School Athletic Association Inc. - June 2006

Pasternak v. Manitoba High Schools Athletic Assn. Inc. (No. 1)
(June 2006)(Adjudication Preliminary Matter)

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.

Full text decision

Dubeck v. CF - December 2002

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.

Full text decision

Morriseau v. Paisley Park – December 2000

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.

Full text decision

Vogel v. the Government of Manitoba et al - 1997

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1996

Vogel v. The Government of 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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1995

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1992

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1991

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1983

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.

Full text decision

Sexual Orientation
Vogel v. The Government of Manitoba et al. - 1997

Vogel v. The Government of 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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1996

Vogel v. The Government of 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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1995

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1992

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1991

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.

Full text decision

Vogel v. The Government of Manitoba et al. - 1983

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.

Full text decision

Harassment

Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell – April 2016

Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell
(April, 2016)

Full text decision

Emslie v. Doholoco Holdings Ltd. o/a The UPS Store #425- December 2014

Emslie v. Doholoco Holdings Ltd. o/a The UPS Store #425
(2014)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that the President and owner sexually harassed her.

The Respondent did not appear at the hearing.

The Adjudicator denied the Commission’s request to protect the complainant’s identity in the written reasons for his decision. The Adjudicator also denied the Commission’s request to amend the complaint to add the President as a respondent in his personal capacity.

The Adjudicator determined that the President was the directing mind of the respondent and in a position of authority over the complainant and that he not only made repeated sexual solicitations or advances towards the complainant, but also physically touched her several times, without her consent. The Adjudicator confirmed that the complainant was not required to object to the harassment at the time as the test is whether a reasonable person would realize the conduct was unwelcome. He noted that the complainant did tell the respondent that she found his conduct objectionable but the conduct did not cease and the complainant did not protest more forcefully for fear of losing her job.

Remedy: The Adjudicator awarded the complainant $15,000.00 in compensation for injury to her dignity, feelings, and self-respect resulting from the harassment and $16,317.55 in compensation for lost income. He also awarded the complainant $5,000.00 in exemplary damages because based on the malice and recklessness of the President’s actions. He further ordered the President to attend a workshop on sexual harassment and to provide evidence of this to the Commission. He also ordered the President to deliver to each employee of the Respondent a copy of the Commission’s policy on harassment and to provide to the Commission a signed acknowledgement from each employee that he or she has received the policy, within thirty days of his decision, and to develop and implement a sexual harassment policy satisfactory to the Commission in form and content, post it at each workplace that he operates and deliver a copy to each employee.

Full text decision

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube - June 2014

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube
(June 2014)

Full text decision

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube - August 2014

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube
(August 2014)

Full text decision

Jewish Community Campus of Winnipeg Inc. v. Metaser and Manitoba Human Rights Commission - December 2013

Jewish Community Campus of Winnipeg Inc. v. Metaser and Manitoba Human Rights Commission
(December 13, 2013)

Full text decision

Metaser v. Jewish Community Campus of Winnipeg Inc. - December 2013

Metaser v. Jewish Community Campus of Winnipeg Inc.
(September 24, 2013)

SUMMARY

The complainant filed a complaint against her employer under section 19 of The Human Rights Code alleging that her employer had failed to take reasonable steps to stop the sexual harassment she was subjected to by her supervisor.

The respondent made a settlement offer that the complainant rejected. The respondent subsequently requested that the adjudicator assess the reasonableness of its settlement offer under section 37.1 of The Human Rights Code.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true, on the basis that the parties and the adjudicative process should not expend resources to adjudicate a complaint, where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that to be reasonable, a settlement offer must take into account all of the remedial headings provided in subsection 43(2) of The Code.

He determined that the settlement offer reasonably ensured future compliance with The Code. The absence of any compensation for lost income was determined to be reasonable on the basis that the complainant had been provided with payment in lieu of notice under the Employment Standards Code following the termination of her employment. The offer of $5,250 was determined to be reasonable and within the range of what an adjudicator would award and the request for a limited release was found to be a reasonable means by which a party may seek some finality.

The adjudicator therefore terminated the adjudication of this complaint.

Remedy:

Full text decision

Garland v. Tackaberry operating as Grape and Grain - April 2013

Garland v. Tackaberry operating as Grape and Grain
(April 23, 2013)(Decision)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer had failed to take reasonable steps to stop the sexual harassment she was subjected to by a customer of the store.

The Adjudicator denied the Commission's request to not identify the complainant in both the public notice of hearing and the written reasons for decision.

The Adjudicator determined that the complainant had been subjected to "a series of objectionable and unwelcome sexual solicitations or advances" on the basis of her sex, constituting sexual harassment. The Adjudicator noted that the underlying policy of section 19 "aims to ensure a workplace, where the dignity and value of individuals are respected and where the economic reality of dependence upon continuing wages does not somehow leave employees feeling trapped and required to suffer the grievous indignity that is harassment".

The Adjudicator rejected the respondent's suggestion that the complainant encouraged the harassment whether directly or by implication and dismissed the respondent's attempts to characterize the complainant on the basis of her sexuality and lifestyle as irrelevant.

He determined that the respondent was aware of the ongoing harassment and found that the respondent's suggestion that the complainant quit her job rather than enduring the harassment undermined the protection that The Code offers. The Adjudicator concluded that the respondent had failed to discharge the obligation imposed on an employer to take reasonable steps to terminate harassment.

Remedy: The Adjudicator awarded $7,750 in general damages for injury to the complainant's dignity, self-respect and feelings resulting from the harassment. The respondent was ordered to attend a workshop on harassment in the workplace and to provide to every new and future employee the respondent's policy on harassment in the workplace.

Full text decision

Kilbride v. A+ Financial Services Ltd. (2013 interim 2)

Kilbride v. A+ Financial Services Ltd.
(2013)(Interim Decision)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer sexually harassed her during her employment.

On November 29, 2012, the Adjudicator had issued an order under section 38 of The Code requiring the respondent to produce certain documents to the Commission. At the hearing on December 11, 2012, the respondent indicated that he objected to that order and the Adjudicator accordingly invited arguments from counsel in writing.

The Adjudicator acknowledged that the test for ordering production of a document under Section 38 is whether the document is relevant to the complaint.

He noted that the respondent had not filed a response to the complaint and therefore it was necessary to determine relevancy with reference to the complaint alone.

The Adjudicator determined that the Commission had met the test of articulating a theory of how the documents requested might help its case or damage the case of the respondent and that the respondent had not put forward any compelling reason why the documents should not be produced.

The Order for Production of Documents was therefore confirmed in its entirety.

Remedy:

Interim Decision

Kilbride v. A+ Financial Services Ltd. - December 11, 2012

Kilbride v. A+ Financial Services Ltd. - December 11, 2012
(December 2012)(Interim Decision)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer sexually harassed her during her employment.

On November 29, 2012, the Adjudicator had issued an order under section 38 of The Code requiring the respondent to produce certain documents to the Commission. At the hearing on December 11, 2012, the respondent indicated that he objected to that order and the Adjudicator accordingly invited arguments from counsel in writing.

The Adjudicator acknowledged that the test for ordering production of a document under Section 38 is whether the document is relevant to the complaint.

He noted that the respondent had not filed a response to the complaint and therefore it was necessary to determine relevancy with reference to the complaint alone.

The Adjudicator determined that the Commission had met the test of articulating a theory of how the documents requested might help its case or damage the case of the respondent and that the respondent had not put forward any compelling reason why the documents should not be produced.

The Order for Production of Documents was therefore confirmed in its entirety.

Remedy:

Interim Decision

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall - November 2012

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall
(2012)(Reasonable Offer)

SUMMARY

The respondent made an application, pursuant to section 37.1 of The Human Rights Code that the adjudication of this complaint be terminated on the basis that the it had made a reasonable settlement offer which the complainant has rejected.

The respondent offered the complainant an all-inclusive amount of $4,000, which it argued was more than reasonable and ought to be sufficient to settle the complaint. The respondent argued that if the complainant is unwilling to accept that amount, the complaint ought to be dismissed pursuant to section 37.1.

In a joint submission, the Commission and the complainant argued that the offer was not reasonable and asked that the complaint proceed to adjudication as scheduled.

The Adjudicator set out the background information or facts contained in the materials submitted to her by counsel, but clarified that she was not making any findings of fact or findings on the merits of the complaint. She noted that the complaint was one of sexual harassment by the respondent owner against the complainant, who was only employed for approximately five months by the respondent. She confirmed that in deciding whether the Respondent's settlement offer is reasonable on this application, she had to proceed on the basis that the allegations as set forth in the complaint are proven.

The Adjudicator noted that the concept of reasonableness is different from that of appropriateness confirmed that the offer must therefore be assessed in the context of what the complainant could reasonably be expected to achieve before a board of adjudication, based on the allegations and any admissions which have been made, and the available remedies. She considered the range of general damages awards in Manitoba and what compensation, if any, might reasonably be awarded to the complainant for financial losses sustained, expenses incurred or benefits lost. She noted that because the allegations of the complainant suggested that the complainant was effectively forced out of her employment or constructively dismissed, as opposed to having quit, the respondent would reasonable be expected to put the complainant in the position she would have been in if the discrimination had not occurred, which differs from the remedy of reasonable notice or wages in lieu of notice in a claim for wrongful dismissal at common law, which depends on the length of time that an employee was employed. The Adjudicator noted that the offer does not contemplate any remedial measures in the public interest such as training or the circulation and posting of a harassment policy, but did not comment in detail on this point. The Adjudicator ultimately determined that the respondent's offer did not adequately address the relief which the complainant could reasonably expect to obtain under The Human Rights Code.

Full text decision

J.D. v. C. N. - August 2005

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.

Full text decision

Budge v. Thorvaldson Care Homes Ltd. - March 2002

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.

Full text decision

Bourrier v. V. Phil-Can Services Ltd. – January 1999

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.

Full text decision

Werestiuk v. Small Business Services Inc. and Reyes - October 1998

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.

Full text decision

Procedure

Cote v. Manitoba Hydro - November 2015

Cote v. Manitoba Hydro
November 2015

Full text decision

Young v. Amsted Canada Inc. – November 2015

Young v. Amsted Canada Inc.
November 2015

Full text decision

Collette v. St. Adolphe Personal Care Home Inc. et al. - September 2015

Collette v. St. Adolphe Personal Care Home Inc. et al.
September 2015

Full text decision

Damianakos v. University of Manitoba - March 2015

Damianakos v. University of Manitoba
(March 2015)

Full text decision

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube - August 2014

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube
(August 2014)

Full text decision

Nachuk v. City Of Brandon (Brandon Police Services) April 2014

Nachuk v. City Of Brandon (Brandon Police Services)
(2014)(Adjudication- Preliminary Matter)

SUMMARY

The respondent made a motion, pursuant to section 37.1 of The Human Rights Code, to terminate the adjudication of the complaint on the basis that the respondent had made a reasonable settlement offer, that the complainant rejected.

The complainant filed a complaint against the Respondent under section 13 of The Human Rights Code alleging that the Respondent discriminated against him on the basis of his disability including the reliance on a service animal, when three on-duty police officers insisted that he leave an establishment.

The respondent offered the complainant $5,500 to compensate for injury to his dignity, feelings, or self-respect.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true. He considered the policy underlying section 37.1, that the adjudicative process should not expend resources to adjudicate a complaint where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that the offer of $5,500 for injury to the complainant’s dignity, feelings, or self-respect failed to reasonably approximate what an adjudicator would award under this remedial heading, in part because none of the cases relied on by the respondent in support of its offer involved the contravention of The Human Rights Code by police officers in the execution of their duty. He also considered the complainant’s vulnerability in the situation and that injury to his dignity would be exacerbated as a result.

The Adjudicator determined that the complainant was not entitled to legal costs and that he did not need to decide on exemplary damages for any malice or recklessness involved in the contravention as he had already determined that the offer was not reasonable.

The Adjudicator dismissed the respondent’s motion.

Remedy:

Full text decision

Metaser v. Jewish Community Campus of Winnipeg Inc. - September 2013

Metaser v. Jewish Community Campus of Winnipeg Inc.
(September 24, 2013)

SUMMARY

The complainant filed a complaint against her employer under section 19 of The Human Rights Code alleging that her employer had failed to take reasonable steps to stop the sexual harassment she was subjected to by her supervisor.

The respondent made a settlement offer that the complainant rejected. The respondent subsequently requested that the adjudicator assess the reasonableness of its settlement offer under section 37.1 of The Human Rights Code.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true, on the basis that the parties and the adjudicative process should not expend resources to adjudicate a complaint, where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that to be reasonable, a settlement offer must take into account all of the remedial headings provided in subsection 43(2) of The Code.

He determined that the settlement offer reasonably ensured future compliance with The Code. The absence of any compensation for lost income was determined to be reasonable on the basis that the complainant had been provided with payment in lieu of notice under the Employment Standards Code following the termination of her employment. The offer of $5,250 was determined to be reasonable and within the range of what an adjudicator would award and the request for a limited release was found to be a reasonable means by which a party may seek some finality.

The adjudicator therefore terminated the adjudication of this complaint.

Remedy:

Full text decision

Kilbride v. A+ Financial Services Ltd. (2013 interim 2)

Kilbride v. A+ Financial Services Ltd.
(2013)(Interim Decision)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer sexually harassed her during her employment.

On November 29, 2012, the Adjudicator had issued an order under section 38 of The Code requiring the respondent to produce certain documents to the Commission. At the hearing on December 11, 2012, the respondent indicated that he objected to that order and the Adjudicator accordingly invited arguments from counsel in writing.

The Adjudicator acknowledged that the test for ordering production of a document under Section 38 is whether the document is relevant to the complaint.

He noted that the respondent had not filed a response to the complaint and therefore it was necessary to determine relevancy with reference to the complaint alone.

The Adjudicator determined that the Commission had met the test of articulating a theory of how the documents requested might help its case or damage the case of the respondent and that the respondent had not put forward any compelling reason why the documents should not be produced.

The Order for Production of Documents was therefore confirmed in its entirety.

Remedy:

Interim Decision

Kilbride v. A+ Financial Services Ltd. - December 11, 2012

Kilbride v. A+ Financial Services Ltd. - December 11, 2012
(December 2012)(Interim Decision)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer sexually harassed her during her employment.

On November 29, 2012, the Adjudicator had issued an order under section 38 of The Code requiring the respondent to produce certain documents to the Commission. At the hearing on December 11, 2012, the respondent indicated that he objected to that order and the Adjudicator accordingly invited arguments from counsel in writing.

The Adjudicator acknowledged that the test for ordering production of a document under Section 38 is whether the document is relevant to the complaint.

He noted that the respondent had not filed a response to the complaint and therefore it was necessary to determine relevancy with reference to the complaint alone.

The Adjudicator determined that the Commission had met the test of articulating a theory of how the documents requested might help its case or damage the case of the respondent and that the respondent had not put forward any compelling reason why the documents should not be produced.

The Order for Production of Documents was therefore confirmed in its entirety.

Remedy:

Interim Decision

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall - November 2012

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall
(2012)(Reasonable Offer)

SUMMARY

The respondent made an application, pursuant to section 37.1 of The Human Rights Code that the adjudication of this complaint be terminated on the basis that the it had made a reasonable settlement offer which the complainant has rejected.

The respondent offered the complainant an all-inclusive amount of $4,000, which it argued was more than reasonable and ought to be sufficient to settle the complaint. The respondent argued that if the complainant is unwilling to accept that amount, the complaint ought to be dismissed pursuant to section 37.1.

In a joint submission, the Commission and the complainant argued that the offer was not reasonable and asked that the complaint proceed to adjudication as scheduled.

The Adjudicator set out the background information or facts contained in the materials submitted to her by counsel, but clarified that she was not making any findings of fact or findings on the merits of the complaint. She noted that the complaint was one of sexual harassment by the respondent owner against the complainant, who was only employed for approximately five months by the respondent. She confirmed that in deciding whether the Respondent's settlement offer is reasonable on this application, she had to proceed on the basis that the allegations as set forth in the complaint are proven.

The Adjudicator noted that the concept of reasonableness is different from that of appropriateness confirmed that the offer must therefore be assessed in the context of what the complainant could reasonably be expected to achieve before a board of adjudication, based on the allegations and any admissions which have been made, and the available remedies. She considered the range of general damages awards in Manitoba and what compensation, if any, might reasonably be awarded to the complainant for financial losses sustained, expenses incurred or benefits lost. She noted that because the allegations of the complainant suggested that the complainant was effectively forced out of her employment or constructively dismissed, as opposed to having quit, the respondent would reasonable be expected to put the complainant in the position she would have been in if the discrimination had not occurred, which differs from the remedy of reasonable notice or wages in lieu of notice in a claim for wrongful dismissal at common law, which depends on the length of time that an employee was employed. The Adjudicator noted that the offer does not contemplate any remedial measures in the public interest such as training or the circulation and posting of a harassment policy, but did not comment in detail on this point. The Adjudicator ultimately determined that the respondent’s offer did not adequately address the relief which the complainant could reasonably expect to obtain under The Human Rights Code.

Full text decision

Korsch v. Manitoba Human Rights Commission - November 2012

Korsch v. Manitoba Human Rights Commission
(2012)(Court of Appeal)

SUMMARY

The appellant appealed the decision of the Court of Queen’s Bench that dismissed his application for judicial review on the basis that it was within the Commission’s jurisdiction under subsection 29(2)(b) to provide constructive direction to the parties to a complaint to assist in effecting a settlement when assessing whether a respondent’s offer of settlement is reasonable. The respondent to the original complaint, Pritchard Engineering Ltd., intervened in the appeal proceedings.

The Court of Appeal referred to Supreme Court of Canada authority and confirmed that the appeal was limited to determining whether the lower court judge erred in concluding that the Commission’s interpretation of subsection 29(2)(b) was reasonable. The Court of Appeal relied on the fact that the Commission is an expert tribunal that was dealing with its home statute and accepted the Commission’s position that it was within its gate keeping function to identify gaps, defects or omissions in a respondent’s offer of settlement and comment on how to remedy those gaps, defects or omissions.

The Court dismissed the appeal and awarded costs in favour of the intervenor, Pritchard Engineering Ltd.

Full text decision

Blatz v. 4L Communications Inc. - June 2012

Blatz v. 4L Communications Inc.
(2012)(Preliminary Matter)

SUMMARY

The complainant sued her former employer for wrongful dismissal. At the same time, she filed a human rights complaint against her former employer under section 14 of The Human Rights Code alleging that she had been discriminated against on the basis of her sex including her pregnancy. The employer sought to defer the hearing of the human rights complaint until the law suit had concluded in the courts.

The adjudicator granted the employer's request in part and determined that an adjudicator has the authority to defer a hearing of a human rights complaint. Although The Code requires that an adjudicator must proceed to a hearing "without undue delay", he or she must consider the specific circumstances of the complaint, including the requirement of fairness, respect for parties, protecting the integrity of the process, and policy considerations.

In this particular complaint, the adjudicator decided that a delay would not be undue. The law suit which was in essence, an employment dispute with a human rights component, belongs first in the courts where employment matters are routinely heard.

The adjudicator was not prepared to provide an open-ended deferral and therefore ordered an 18-month deferral, allowing the parties to apply in the meantime to shorten or extend that delay.

Full text decision

Korsch v. Manitoba Human Rights Commission - September 2011

Korsch v. Manitoba Human Rights Commission
(2011)(Judicial Review)

SUMMARY

The applicant filed an application for judicial review of the Board of Commissioner’s decision to terminate the applicant’s complaint proceedings under subsection 29(2)(b) of The Human Rights Code, because the applicant had rejected a settlement offer by the respondent to the complaint that the Board determined to be reasonable.  The respondent to the complaint intervened in the judicial review proceedings.

Counsel agreed that the standard of review was reasonableness without distinguishing between interpretation of subsection 29(2)(b) and the substance of the decision itself.

The applicant argued that the Commission must take a respondent's offer "as is" and that it misinterpreted and failed to comply with the legislation by modifying the offer and thereafter finding the modified offer to be reasonable. The applicant also argued that the Commission's decision was unreasonable, both in the factors considered and the result. The Commission argued that the applicant's position would result in an overly narrow interpretation of subsection 29(2)(b) and preclude the Commission from giving any constructive direction to the parties that would assist in effecting a settlement.

The Court accepted the Commission's position and determined that it is reasonable that in assessing the offer, the Commission may identify gaps, defects or omissions and provide some constructive direction or clarification to the parties as to how these gaps, defects or omissions might be remedied to render the offer reasonable. To find otherwise would significantly impede the Commission's ability to perform its gate-keeping function under The Human Rights Code. The Court reviewed the Commission's assessment of the substantive aspects of the offer and found the Commission's assessment to have been reasonable and consistent with the legislative intent of The Human Rights Code.

The Court dismissed the application.

Full text decision

Pollock et al. v. Winnipeg Condominium Corporation No. 30 - October 2011

Pollock et al. v. Winnipeg Condominium Corporation No. 30
(October 2011)(Adjudication - Preliminary Matters)

SUMMARY

The complainants made an application to the Adjudicator relating to the Manitoba Human Rights Commission's jurisdiction to terminate all proceedings, including the adjudication, after complaints have been referred to adjudication and to withdraw from the proceedings. Some of the complainants also requested to amend their complaints to include allegations of reprisal, and funding to retain counsel and pay witness fees and expenses in the event that the Commission withdraws from the adjudication. There were also various other requests to accommodate the special needs of the complainants and their witnesses with respect to the adjudication hearing.

The complainants argued that the Commission was functus officio once it had referred a complaint to adjudication and could no longer consider further offers of settlement by the respondent. The Commission argued amongst other things that the complainant's approach undermines the legislature's objective with little added benefit for complainants or for the public's interest in remedying and preventing discrimination and accordingly requested a ruling that an adjudicator under The Code may not continue an adjudication if the Commission has terminated proceedings under clause 29(2)(b).

The Adjudicator found that the Commission is functus officio in terms of its section 29 powers and therefore an interpretation of The Code which would allow the Commission to unilaterally terminate the adjudication, at presumably any time prior to its completion, would be inconsistent with the independent status and statutory duty of an adjudicator to adjudicate the complaint.

In light of the foregoing determination, the complainants argued that the Commission should not be permitted to withdraw from the adjudication proceedings. The Adjudicator agreed that pursuant to section 34, the Commission is a party to the adjudication whose role is to represent and advance the public interest, which may include advocating for the interests of the complainant, but it is not required under the statute to do so. The Commission may continue to assess whether it would be in the public interest to settle a matter on terms as set forth by the respondent, but the Commission cannot withdraw from the adjudication. The Commission can, however, withdraw from actively participating in the proceedings.

The complainants argued that if the Commission is entitled to withdraw from actively participating in the adjudication, the Government of Manitoba be required to fund or provide legal counsel at no cost to the complainants. The Adjudicator determined that there is no basis for an order requiring or requesting the Government to fund or provide legal counsel to the complainants for the adjudication of their complaints, nor for an order requiring the Commission to pay one of the complainant’s expenses for attending and participating at the hearing of her complaint.

The Adjudicator was not prepared to amend the complaints to include allegations of reprisal on the basis of the factual information provided to her, nor was she prepared to determine the matter of certain accommodations requested. She was however, prepared to allow one of the complainants to act on behalf of another on an unpaid basis.

Full text decision

Willcox v. Ladco Company Limited o/a Lakewood Agencies - March 2011

Willcox v. Ladco Company Limited o/a Lakewood Agencies
(2011)(Adjudication - Preliminary Matter)

SUMMARY

The respondent made an application to the Adjudicator pursuant to subsection 36(2) of The Human Rights Code that its name not be disclosed in the Notice of Hearing which must be published in the Manitoba Gazette and the Winnipeg Free Press, concerning a complaint against it alleging a failure to accommodate under section 14 of The Human Rights Code.

The respondent argued that there is a stigma associated with being alleged to have breached a provision of The Human Rights Code which does not apply to other civil proceedings. It took the position that it deals with a broad cross-section of the public in connection with accommodation and that it would be prejudicial to have published the allegation that it had breached The Human Rights Code and in addition, none of the allegations have yet been proven.

The Commission opposed the application on the basis that the wording of subsection 36(2) specifically requires that the parties to an adjudication be named in the public Notice, unless the adjudicator "decides that it would be unduly prejudicial in the circumstances to disclose the names of some or all of the parties prior to the hearing". It argued the term "unduly prejudicial" should be interpreted to mean more than mere prejudice that might arise in an administrative proceeding, and rather, sufficient prejudice to outweigh the public interest protected by The Human Rights Code.

The Adjudicator found that the intention of the legislation is for the hearings to be public and that the public have meaningful access to its hearings, unless to do so would cause undue prejudice to one of the parties. She referred to case authority that requires consideration of the rights of the parties and the efficacy of the administration of justice and determined that the respondent’s privacy interests did not outweigh the public’s right to access information about the adjudication proceeding.

The Adjudicator denied the respondent's request to remove its name from the public Notice of Hearing.

Full text decision

Pasternak v. Manitoba High School Athletic Association Inc.- June 2006

Pasternak v. Manitoba High Schools Athletic Association Inc. (No. 1)
(June 2006)(Adjudication Preliminary Matter)

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.

Full text decision

Reasonable Accommodation

Gordan v. Winnipeg Corporation No. 30 – June 2016

Gordan v. Winnipeg Corporation No. 30
June 2016

Full text decision

Renard v. Winnipeg Corporation No. 30 – June 2016

Renard v. Winnipeg Corporation No. 30
June 2016

Full text decision

Collette v. St. Adolphe Personal Care Home Inc. et al. - September 2015

Collette v. St. Adolphe Personal Care Home Inc. et al.
September 2015

Full text decision

Horrocks v. Northern Regional Health Authority - September 2015

Horrocks v. Northern Regional Health Authority
(2015)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of her disability (addiction to alcohol) and by failing to accommodate her special needs based on her disability and instead, terminated her employment.

The complainant entered into an agreement with her union and the employer that provided that she would, amongst other things abstain from alcohol both on and off work. While the complainant initially refused to sign the agreement and was terminated for failing to do so, she grieved that termination and began further discussions about the terms on which she would return to work. After being off work for a considerable period of time, she agreed to sign the agreement and abstain as required. Prior to returning to the workplace, the respondent employer terminated her employment on the basis of two reports that the complainant had been seen in the community and appeared to have been drinking

The respondent raised an issue regarding the jurisdiction of the adjudicator to consider a human rights matter that arises from a unionized workplace, arguing that the exclusive, or alternatively, more appropriate forum to consider the matter would be a labour arbitration. The respondent also argued that labour arbitrators have argued that signing a total abstinence clause was a bona fide occupational requirement of her position and further, that the agreement containing the total abstinence clause was a form of reasonable accommodation.

On the issue of jurisdiction, the Adjudicator determined that the essential character of the dispute between the parties fell within her jurisdiction as a human rights adjudicator. She found that she had jurisdiction to determine whether the complainant experienced discrimination in the manner alleged in the complaint and that in doing so, she would have to examine not only the terms of the settlement agreement but also the totality of the interactions between the parties.

She found that the complainant had been discriminated against on the basis of her addiction and that the respondent had not engaged in a process to determine her special needs based on her addiction that would result in an accommodation process. She also found that the respondent had not satisfied the requirement to substantively accommodate the complainant’s disability-related needs and instead terminated her employment.

Remedy: The complainant was awarded $10,000 in compensation for injury to her dignity, self respect and feelings. She was ordered to be reinstated to her former position with an accounting for her any loss of seniority, benefits or other financial loss upon being assessed by a professional with expertise in treating individuals with alcohol addiction to determine if she requires any accommodation. She was also awarded lost wages from the date that she was initially suspended from the workplace to the date of hearing. The respondent was ordered to develop a reasonable accommodation policy.

Full text decision

Nachuk v. City Of Brandon (Brandon Police Services) April 2014

Nachuk v. City Of Brandon (Brandon Police Services)
(2014)(Adjudication- Preliminary Matter)

SUMMARY

The respondent made a motion, pursuant to section 37.1 of The Human Rights Code, to terminate the adjudication of the complaint on the basis that the respondent had made a reasonable settlement offer, that the complainant rejected.

The complainant filed a complaint against the Respondent under section 13 of The Human Rights Code alleging that the Respondent discriminated against him on the basis of his disability including the reliance on a service animal, when three on-duty police officers insisted that he leave an establishment.

The respondent offered the complainant $5,500 to compensate for injury to his dignity, feelings, or self-respect.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true. He considered the policy underlying section 37.1, that the adjudicative process should not expend resources to adjudicate a complaint where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that the offer of $5,500 for injury to the complainant’s dignity, feelings, or self-respect failed to reasonably approximate what an adjudicator would award under this remedial heading, in part because none of the cases relied on by the respondent in support of its offer involved the contravention of The Human Rights Code by police officers in the execution of their duty. He also considered the complainant’s vulnerability in the situation and that injury to his dignity would be exacerbated as a result.

The Adjudicator determined that the complainant was not entitled to legal costs and that he did not need to decide on exemplary damages for any malice or recklessness involved in the contravention as he had already determined that the offer was not reasonable.

The Adjudicator dismissed the respondent’s motion.

Remedy:

Full text decision

Dick v The Pepsi Bottling Group (Canada), Co. - April 2014

Dick v The Pepsi Bottling Group (Canada), Co.
April 7, 2014

Full text decision

Brockmeyer v. The Cornerstone Housing Corporation o/a The Cornerstone Life Lease Estates - February 2014

Brockmeyer v. The Cornerstone Housing Corporation o/a The Cornerstone Life Lease Estates
February 13, 2014

SUMMARY

The complainant filed a complaint against her landlord alleging that it had failed to reasonably accommodate her disability related needs, which included taking adequate steps to determine the nature of those needs or to accommodate them to the point of undue hardship.

The complainant alleged that prior to signing the lease she and her mother had communicated that her mother had a need for grab bars in the bathroom and to able to use certain aides including a bath lift and toilevator in her suite. The complainant alleged that she made ongoing requests to ensure that the suite was modified prior to her mother occupying the suite and that she be permitted to view the suite during construction to enable her to determine if any modifications were required in respect to utilizing the aides in the suite.

The respondent argued that it reasonably accommodated the complainant's needs and that any changes that were to be made to the suite could have been done at the complainant's own cost and after occupancy.

The Adjudicator granted the Commission's request to amend the complaint to allege a contravention of section 16 of The Human Rights Code which specifically prohibits discrimination in housing.

The Adjudicator determined that the landlord's duty to accommodate included a duty to consent, on reasonable terms, to modifications to private living space to meet the special needs of a tenant and found that in this case, the complainant had the primary responsibility for proposing accommodation measures. The Adjudicator found custom modifications to private living space to fall into a different category than modifications to common living space in a condominium complex for example and concluded that the landlord did not have an obligation to pay for any of the modifications to the suite unless it could be shown that the landlord's failure to provide reasonable accommodation materially increased the costs of the work.

The Adjudicator was satisfied that the construction was behind schedule and that it would have been an undue hardship for the landlord to have arranged for the modifications to be made prior to the complainant taking occupancy and that it was not reasonable to expect the landlord to have shared the dimensions of the bath tub and similar information with the complainant.

The Adjudicator determined the landlord had satisfied its obligations to provide reasonable accommodation of the complainant's disability related.

The complaint was dismissed.

Remedy:

Full text decision

K.K. v. G.S. c.o.b. Hair Passion - January 2013

K.K. v. G.S. c.o.b. Hair Passion (January 2013)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of her disability (bi-polar depression) and by failing to accommodate her special needs based on her disability and instead, terminated her employment.

The complainant alleged that while her employer had been a good friend to her and had accommodated her disability during her employment, she failed to reasonably accommodate her disability when she ultimately terminated her employment during a period of hospitalization. The respondent argued that it would have been an undue hardship to continue to employ the complainant given that her performance had declined and she was losing business.

The Adjudicator found that the complainant's disability impacted her performance sufficiently to conclude that it was an indirect or motivating factor in the respondent's decision to terminate her employment. The Adjudicator found that the respondent satisfied the procedural and substantive requirement to accommodate the complainant's disability during the course of her employment, but failed to show that it was justified in terminating the complainant's employment when it did.

Remedy: The complainant was awarded $2000 in general damages for injury to her dignity, self respect and feelings. The Adjudicator declined to make an award for any other financial losses because she did not have sufficient evidence that the complainant could have returned to perform the essential duties of her position. The Adjudicator was satisfied that the respondent was generally aware of its duty to accommodate and found it would serve no "useful purpose" to require the respondent to develop an accommodation policy.

The Adjudicator granted the Commission's request to identify the complainant by her initials only given the sensitive nature of the information disclosed at the hearing.

Full text decision

C.R. v. Canadian Mental Health Association Westman Region Inc. - January 2013

C.R. v. Canadian Mental Health Association Westman Region Inc.
(January 2013)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of disability (addiction to alcohol) by failing to reasonably accommodate her special needs based on her disability and instead, terminated her employment.

The respondent took the position that the complainant's employment was terminated for misappropriation of funds.

The Adjudicator determined that although there was not sufficient evidence to establish the complainant had an addiction to alcohol, there was sufficient evidence to establish that the respondent perceived her to have an addiction to alcohol and therefore a disability, which equally attracts protection under The Code.

The Adjudicator determined that the complainant's disability was a factor in the respondent's decision treatment of the complainant leading up to the termination of her employment and the termination of her employment itself. She did not accept that the termination of the complainant's employment was based solely on misappropriation of funds and was not convinced that the evidence established any misappropriation of funds at all.

She determined that the respondent has not satisfied its onus of establishing, on the balance of probabilities, that there was a bona fide or reasonable cause or justification for its treatment of the complainant or that reasonable accommodation was made or was not possible in the circumstances.

Remedy: The complainant was awarded lost wages in the amount of $1894.20, equivalent to four weeks' wages and $4000 in damages for injury to the complainant's dignity, self respect and feelings. The Adjudicator also issued a monitoring order which would allow the Commission to monitor the respondent's employment practices for a period of two years.

Full text decision

Chestnut v. Theo C Limited o/a Hampton Inn & Suites - May 2012

Chestnut v. Theo C Limited o/a Hampton Inn & Suites
(2012)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment by failing to reasonably accommodate her special needs related to her disability (Osteoporosis) and instead, terminated her employment.

The respondent took the position that it had not discriminated against the complainant in any way and that the complainant was not unable to perform her job duties.

The Adjudicator accepted that the Complainant experienced symptoms of back pain and fatigue, which affected her ability to perform her job duties as a housekeeper and constituted a disability. He determined that the respondent was not aware of its obligation to provide reasonable accommodation in the workplace and had failed to make inquires with respect to the Complainant’s disability. The Adjudicator therefore determined that the respondent had contravened section 14 of The Human Rights Code.

Remedy: The Adjudicator awarded the complainant $2,000 in general damages for injury to her dignity, self respect and feelings and one month’s lost wages in the amount of $1,650. He ordered the respondent to develop a reasonable accommodation policy in consultation with the Commission within three months of the decision and to post that policy it its staffroom and provide it to all current and future staff. He further ordered two members of management to attend a workshop on reasonable accommodation conducted by the Commission, by the end of 2012.

Full text decision

Kallen v. Midwest Pallet Works Ltd. - January 2012

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.

Full text decision

Penner v. Fort Garry Services Inc. - November 2009

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.

Full text decision

Ursel v. LMG Properties Ltd. O/A Bay Hill Inns and Suites - June 2009

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.

Full text decision

L.H. v. Vietnamese Non-Profit housing Corporation – March 2007

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.

Full text decision

A. v. Natural Progress Inc. or Little Chief's Place – January 2005

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.

Full text decision

Reprisal

Richard v. BYHA Inc. - October 2006

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.

Full text decision

All Summaries and Decisions

Gordan v. Winnipeg Corporation No. 30 – June 2016

Gordan v. Winnipeg Corporation No. 30
June 2016

Full text decision

Renard v. Winnipeg Corporation No. 30 – June 2016

Renard v. Winnipeg Corporation No. 30
June 2016

Full text decision

Szabo v.Cindy Dayman operating as Take Time Home Clean & Life Style Services – April 2016

Szabo v.Cindy Dayman operating as Take Time Home Clean & Life Style Services
(April, 2016)

Full text decision

Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell – April 2016

Jedrzejewska, Chaudhry, and Chaudhry v. A+ Financial Services Ltd. and Wayne McConnell
(April, 2016)

Full text decision

Cote v. Manitoba Hydro - November 2015

Cote v. Manitoba Hydro
November 2015

Full text decision

Young v. Amsted Canada Inc. - November 2015

Young v. Amsted Canada Inc.
November 2015

Full text decision

Collette v. St. Adolphe Personal Care Home Inc. et al. - September 2015

Collette v. St. Adolphe Personal Care Home Inc. et al.
September 2015

Full text decision

Horrocks v. Northern Regional Health Authority - September 2015

Horrocks v. Northern Regional Health Authority
(2015)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of her disability (addiction to alcohol) and by failing to accommodate her special needs based on her disability and instead, terminated her employment.

The complainant entered into an agreement with her union and the employer that provided that she would, amongst other things abstain from alcohol both on and off work. While the complainant initially refused to sign the agreement and was terminated for failing to do so, she grieved that termination and began further discussions about the terms on which she would return to work. After being off work for a considerable period of time, she agreed to sign the agreement and abstain as required. Prior to returning to the workplace, the respondent employer terminated her employment on the basis of two reports that the complainant had been seen in the community and appeared to have been drinking

The respondent raised an issue regarding the jurisdiction of the adjudicator to consider a human rights matter that arises from a unionized workplace, arguing that the exclusive, or alternatively, more appropriate forum to consider the matter would be a labour arbitration. The respondent also argued that labour arbitrators have argued that signing a total abstinence clause was a bona fide occupational requirement of her position and further, that the agreement containing the total abstinence clause was a form of reasonable accommodation.

On the issue of jurisdiction, the Adjudicator determined that the essential character of the dispute between the parties fell within her jurisdiction as a human rights adjudicator. She found that she had jurisdiction to determine whether the complainant experienced discrimination in the manner alleged in the complaint and that in doing so, she would have to examine not only the terms of the settlement agreement but also the totality of the interactions between the parties.

She found that the complainant had been discriminated against on the basis of her addiction and that the respondent had not engaged in a process to determine her special needs based on her addiction that would result in an accommodation process. She also found that the respondent had not satisfied the requirement to substantively accommodate the complainant’s disability-related needs and instead terminated her employment.

Remedy: The complainant was awarded $10,000 in compensation for injury to her dignity, self respect and feelings. She was ordered to be reinstated to her former position with an accounting for her any loss of seniority, benefits or other financial loss upon being assessed by a professional with expertise in treating individuals with alcohol addiction to determine if she requires any accommodation. She was also awarded lost wages from the date that she was initially suspended from the workplace to the date of hearing. The respondent was ordered to develop a reasonable accommodation policy.

Full text decision

Blatz v 4L Communications Inc. - May 2015

Blatz v 4L Communications Inc.
(May 2015)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging that her employer discriminated against her by terminating her employment due to her pregnancy and/or the circumstances related to her pregnancy.

The complainant was the respondent’s General Manager and second in command. She advised her employer that she was pregnant and that she had required some accommodation during early pregnancy. She also alleged that her employer had not raised any concerns with her performance and that she had been rewarded for her performance with financial compensation and other rewards. She alleged that in the absence of performance concerns, her pregnancy was a factor, not the sole factor, but a factor in the employer’s decision. The respondent employer argued her employment was terminated because her performance was less than satisfactory and not because of her pregnancy.

The Adjudicator determined that the complainant’s pregnancy was not a factor in the respondent’s decision to terminate her employment and that the employer had plausible reasons unrelated to pregnancy for terminating her employment. The Adjudicator was not prepared to infer from the evidence presented at the hearing, that her pregnancy was a factor in the termination decision.

The Adjudicator therefore dismissed the complaint.

Full text decision

Damianakos v. University of Manitoba - March 2015

Damianakos v. University of Manitoba
(March 2015)

Full text decision

Emslie v. Doholoco Holdings Ltd. o/a The UPS Store #425- December 2014

Emslie v. Doholoco Holdings Ltd. o/a The UPS Store #425
(2014)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that the President and owner sexually harassed her.

The Respondent did not appear at the hearing.

The Adjudicator denied the Commission’s request to protect the complainant’s identity in the written reasons for his decision. The Adjudicator also denied the Commission’s request to amend the complaint to add the President as a respondent in his personal capacity.

The Adjudicator determined that the President was the directing mind of the respondent and in a position of authority over the complainant and that he not only made repeated sexual solicitations or advances towards the complainant, but also physically touched her several times, without her consent. The Adjudicator confirmed that the complainant was not required to object to the harassment at the time as the test is whether a reasonable person would realize the conduct was unwelcome. He noted that the complainant did tell the respondent that she found his conduct objectionable but the conduct did not cease and the complainant did not protest more forcefully for fear of losing her job.

Remedy: The Adjudicator awarded the complainant $15,000.00 in compensation for injury to her dignity, feelings, and self-respect resulting from the harassment and $16,317.55 in compensation for lost income. He also awarded the complainant $5,000.00 in exemplary damages because based on the malice and recklessness of the President’s actions. He further ordered the President to attend a workshop on sexual harassment and to provide evidence of this to the Commission. He also ordered the President to deliver to each employee of the Respondent a copy of the Commission’s policy on harassment and to provide to the Commission a signed acknowledgement from each employee that he or she has received the policy, within thirty days of his decision, and to develop and implement a sexual harassment policy satisfactory to the Commission in form and content, post it at each workplace that he operates and deliver a copy to each employee.

Full text decision

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube - June 2014

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube
(June 2014)

Full text decision

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube - August 2014

Walmsley v. Brousseau Bros. Ltd. Operating as Super Lube
(August 2014)

Full text decision

Nachuk v. City Of Brandon (Brandon Police Services) April 2014

Nachuk v. City Of Brandon (Brandon Police Services)
(2014)(Adjudication- Preliminary Matter)

SUMMARY

The respondent made a motion, pursuant to section 37.1 of The Human Rights Code, to terminate the adjudication of the complaint on the basis that the respondent had made a reasonable settlement offer, that the complainant rejected.

The complainant filed a complaint against the Respondent under section 13 of The Human Rights Code alleging that the Respondent discriminated against him on the basis of his disability including the reliance on a service animal, when three on-duty police officers insisted that he leave an establishment.

The respondent offered the complainant $5,500 to compensate for injury to his dignity, feelings, or self-respect.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true. He considered the policy underlying section 37.1, that the adjudicative process should not expend resources to adjudicate a complaint where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that the offer of $5,500 for injury to the complainant’s dignity, feelings, or self-respect failed to reasonably approximate what an adjudicator would award under this remedial heading, in part because none of the cases relied on by the respondent in support of its offer involved the contravention of The Human Rights Code by police officers in the execution of their duty. He also considered the complainant’s vulnerability in the situation and that injury to his dignity would be exacerbated as a result.

The Adjudicator determined that the complainant was not entitled to legal costs and that he did not need to decide on exemplary damages for any malice or recklessness involved in the contravention as he had already determined that the offer was not reasonable.

The Adjudicator dismissed the respondent’s motion.

Remedy:

Full text decision

Dick v. The Pepsi Bottling Group (Canada), Co. - April, 2014

Dick v. The Pepsi Bottling Group (Canada), Co.
April 7, 2014)

Full Text Decision

Brockmeyer v. The Cornerstone Housing Corporation o/a The Cornerstone Life Lease Estates - Feburary, 2014

Brockmeyer v. The Cornerstone Housing Corporation o/a The Cornerstone Life Lease Estates
February 13, 2014)

SUMMARY

The complainant filed a complaint against her landlord alleging that it had failed to reasonably accommodate her disability related needs, which included taking adequate steps to determine the nature of those needs or to accommodate them to the point of undue hardship.

The complainant alleged that prior to signing the lease she and her mother had communicated that her mother had a need for grab bars in the bathroom and to able to use certain aides including a bath lift and toilevator in her suite. The complainant alleged that she made ongoing requests to ensure that the suite was modified prior to her mother occupying the suite and that she be permitted to view the suite during construction to enable her to determine if any modifications were required in respect to utilizing the aides in the suite.

The respondent argued that it reasonably accommodated the complainant's needs and that any changes that were to be made to the suite could have been done at the complainant's own cost and after occupancy.

The Adjudicator granted the Commission's request to amend the complaint to allege a contravention of section 16 of The Human Rights Code which specifically prohibits discrimination in housing.

The Adjudicator determined that the landlord's duty to accommodate included a duty to consent, on reasonable terms, to modifications to private living space to meet the special needs of a tenant and found that in this case, the complainant had the primary responsibility for proposing accommodation measures. The Adjudicator found custom modifications to private living space to fall into a different category than modifications to common living space in a condominium complex for example and concluded that the landlord did not have an obligation to pay for any of the modifications to the suite unless it could be shown that the landlord's failure to provide reasonable accommodation materially increased the costs of the work.

The Adjudicator was satisfied that the construction was behind schedule and that it would have been an undue hardship for the landlord to have arranged for the modifications to be made prior to the complainant taking occupancy and that it was not reasonable to expect the landlord to have shared the dimensions of the bath tub and similar information with the complainant.

The Adjudicator determined the landlord had satisfied its obligations to provide reasonable accommodation of the complainant's disability related.

The complaint was dismissed.

Remedy:

Full Text Decision

Jewish Community Campus of Winnipeg Inc. v. Metaser and Manitoba Human Rights Commission - December 2013

Jewish Community Campus of Winnipeg Inc. v. Metaser and Manitoba Human Rights Commission
(December 13, 2013)

Full Text Decision

Metaser v. Jewish Community Campus of Winnipeg Inc. - September 2013

Metaser v. Jewish Community Campus of Winnipeg Inc.
(September 24, 2013)

SUMMARY

The complainant filed a complaint against her employer under section 19 of The Human Rights Code alleging that her employer had failed to take reasonable steps to stop the sexual harassment she was subjected to by her supervisor.

The respondent made a settlement offer that the complainant rejected. The respondent subsequently requested that the adjudicator assess the reasonableness of its settlement offer under section 37.1 of The Human Rights Code.

The Adjudicator proceeded to assess the offer on the basis that the facts in the complaint were proven to be true, on the basis that the parties and the adjudicative process should not expend resources to adjudicate a complaint, where the respondent has already made an offer that is the same or nearly the same as, or at least approximates, all of the remedies that an adjudicator would have ordered at a hearing of the complaint.

The Adjudicator determined that to be reasonable, a settlement offer must take into account all of the remedial headings provided in subsection 43(2) of The Code.

He determined that the settlement offer reasonably ensured future compliance with The Code. The absence of any compensation for lost income was determined to be reasonable on the basis that the complainant had been provided with payment in lieu of notice under the Employment Standards Code following the termination of her employment. The offer of $5,250 was determined to be reasonable and within the range of what an adjudicator would award and the request for a limited release was found to be a reasonable means by which a party may seek some finality.

The adjudicator therefore terminated the adjudication of this complaint.

Remedy:

Full Text Decision

Garland v. Tackaberry operating as Grape and Grain - April 2013

Garland v. Tackaberry operating as Grape and Grain
April 23, 2013, Decision

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer had failed to take reasonable steps to stop the sexual harassment she was subjected to by a customer of the store.

The Adjudicator denied the Commission's request to not identify the complainant in both the public notice of hearing and the written reasons for decision.

The Adjudicator determined that the complainant had been subjected to "a series of objectionable and unwelcome sexual solicitations or advances" on the basis of her sex, constituting sexual harassment. The Adjudicator noted that the underlying policy of section 19 "aims to ensure a workplace, where the dignity and value of individuals are respected and where the economic reality of dependence upon continuing wages does not somehow leave employees feeling trapped and required to suffer the grievous indignity that is harassment".

The Adjudicator rejected the respondent's suggestion that the complainant encouraged the harassment whether directly or by implication and dismissed the respondent's attempts to characterize the complainant on the basis of her sexuality and lifestyle as irrelevant.

He determined that the respondent was aware of the ongoing harassment and found that the respondent's suggestion that the complainant quit her job rather than enduring the harassment undermined the protection that The Code offers. The Adjudicator concluded that the respondent had failed to discharge the obligation imposed on an employer to take reasonable steps to terminate harassment.

Remedy: The Adjudicator awarded $7,750 in general damages for injury to the complainant's dignity, self-respect and feelings resulting from the harassment. The respondent was ordered to attend a workshop on harassment in the workplace and to provide to every new and future employee the respondent's policy on harassment in the workplace.

Full Text Decision

C.R. v. Canadian Mental Health Association Westmen Region Inc. - April 2013

C.R. v. Canadian Mental Health Association Westman Region Inc.
April 2013, Recalculation

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of a perceived disability (addiction to alcohol) by failing to accommodate her special needs based on her disability and instead, terminated her employment.

On January 7, 2013, the Adjudicator had determined that the respondent breached section 14 of The Code and had ordered the respondent to pay the complainant $1,894.20 to compensate her for lost wages and $4,000.00 to compensate her for injury to her dignity, feelings and self-respect. The Adjudicator had based the calculation of lost wages on certain documents produced at the hearing and indicated that if the calculation was incorrect, she would resolve any issues arising in that regard.

On January 9, 2013, the Commission and the complainant jointly submitted a request to the Adjudicator to recalculate the award of lost wages. Amongst other things, it was argued that the complainant's payment in lieu of notice which was relied upon to calculate the award of lost wages had been miscalculated by the respondent.

The Adjudicator relied on the doctrine of functus officio to determine that she did not have the authority to amend the award for lost compensation and further, that if she did have the authority, she did not consider it appropriate to do so given the evidence provided and because the parties had a full opportunity to address the issue at the hearing of the complaint.

The request for a recalculation of the award of lost wages was denied.

Remedy:

Interim Decision

Kilbride v. A+ Financial Services Ltd. (2013 interim 2)

Kilbride v. A+ Financial Services Ltd.
(2013)(Interim Decision)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer sexually harassed her during her employment.

On November 29, 2012, the Adjudicator had issued an order under section 38 of The Code requiring the respondent to produce certain documents to the Commission. At the hearing on December 11, 2012, the respondent indicated that he objected to that order and the Adjudicator accordingly invited arguments from counsel in writing.

The Adjudicator acknowledged that the test for ordering production of a document under Section 38 is whether the document is relevant to the complaint.

He noted that the respondent had not filed a response to the complaint and therefore it was necessary to determine relevancy with reference to the complaint alone.

The Adjudicator determined that the Commission had met the test of articulating a theory of how the documents requested might help its case or damage the case of the respondent and that the respondent had not put forward any compelling reason why the documents should not be produced.

The Order for Production of Documents was therefore confirmed in its entirety.

Remedy:

Interim Decision

K.K. v. G.S. c.o.b. Hair Passion - January 2013

K.K. v. G.S. c.o.b. Hair Passion
(January 2013)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of her disability (bi-polar depression) and by failing to accommodate her special needs based on her disability and instead, terminated her employment.

The complainant alleged that while her employer had been a good friend to her and had accommodated her disability during her employment, she failed to reasonably accommodate her disability when she ultimately terminated her employment during a period of hospitalization. The respondent argued that it would have been an undue hardship to continue to employ the complainant given that her performance had declined and she was losing business.

The Adjudicator found that the complainant’s disability impacted her performance sufficiently to conclude that it was an indirect or motivating factor in the respondent’s decision to terminate her employment. The Adjudicator found that the respondent satisfied the procedural and substantive requirement to accommodate the complainant’s disability during the course of her employment, but failed to show that it was justified in terminating the complainant’s employment when it did.

Remedy: The complainant was awarded $2000 in general damages for injury to her dignity, self respect and feelings. The Adjudicator declined to make an award for any other financial losses because she did not have sufficient evidence that the complainant could have returned to perform the essential duties of her position.  The Adjudicator was satisfied that the respondent was generally aware of its duty to accommodate and found it would serve no “useful purpose” to require the respondent to develop an accommodation policy.

The Adjudicator granted the Commission’s request to identify the complainant by her initials only given the sensitive nature of the information disclosed at the hearing.

Full text decision

C.R. v. Canadian Mental Health Association Westman Region Inc. - January 2013

C.R. v. Canadian Mental Health Association Westman Region Inc.
(January 2013)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment on the basis of disability (addiction to alcohol) by failing to reasonably accommodate her special needs based on her disability and instead, terminated her employment.

The respondent took the position that the complainant's employment was terminated for misappropriation of funds.

The Adjudicator determined that although there was not sufficient evidence to establish the complainant had an addiction to alcohol, there was sufficient evidence to establish that the respondent perceived her to have an addiction to alcohol and therefore a disability, which equally attracts protection under The Code.

The Adjudicator determined that the complainant's disability was a factor in the respondent's decision treatment of the complainant leading up to the termination of her employment and the termination of her employment itself. She did not accept that the termination of the complainant's employment was based solely on misappropriation of funds and was not convinced that the evidence established any misappropriation of funds at all.

She determined that the respondent has not satisfied its onus of establishing, on the balance of probabilities, that there was a bona fide or reasonable cause or justification for its treatment of the complainant or that reasonable accommodation was made or was not possible in the circumstances.

Remedy: The complainant was awarded lost wages in the amount of $1894.20, equivalent to four weeks' wages and $4000 in damages for injury to the complainant's dignity, self respect and feelings. The Adjudicator also issued a monitoring order which would allow the Commission to monitor the respondent's employment practices for a period of two years.

Full text decision

Kilbride v. A+ Financial Services Ltd. - December 11, 2012

Kilbride v. A+ Financial Services Ltd. - December 11, 2012
(December 2012)(Interim Decision)

SUMMARY

The complainant filed a complaint against her former employer under section 19 of The Human Rights Code alleging that her employer sexually harassed her during her employment.

On November 29, 2012, the Adjudicator had issued an order under section 38 of The Code requiring the respondent to produce certain documents to the Commission. At the hearing on December 11, 2012, the respondent indicated that he objected to that order and the Adjudicator accordingly invited arguments from counsel in writing.

The Adjudicator acknowledged that the test for ordering production of a document under Section 38 is whether the document is relevant to the complaint.

He noted that the respondent had not filed a response to the complaint and therefore it was necessary to determine relevancy with reference to the complaint alone.

The Adjudicator determined that the Commission had met the test of articulating a theory of how the documents requested might help its case or damage the case of the respondent and that the respondent had not put forward any compelling reason why the documents should not be produced.

The Order for Production of Documents was therefore confirmed in its entirety.

Remedy:

Interim decision

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall - November 2012

Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall
(2012)(Reasonable Offer)

SUMMARY

The respondent made an application, pursuant to section 37.1 of The Human Rights Code that the adjudication of this complaint be terminated on the basis that the it had made a reasonable settlement offer which the complainant has rejected.

The respondent offered the complainant an all-inclusive amount of $4,000, which it argued was more than reasonable and ought to be sufficient to settle the complaint. The respondent argued that if the complainant is unwilling to accept that amount, the complaint ought to be dismissed pursuant to section 37.1.

In a joint submission, the Commission and the complainant argued that the offer was not reasonable and asked that the complaint proceed to adjudication as scheduled.

The Adjudicator set out the background information or facts contained in the materials submitted to her by counsel, but clarified that she was not making any findings of fact or findings on the merits of the complaint. She noted that the complaint was one of sexual harassment by the respondent owner against the complainant, who was only employed for approximately five months by the respondent. She confirmed that in deciding whether the Respondent's settlement offer is reasonable on this application, she had to proceed on the basis that the allegations as set forth in the complaint are proven.

The Adjudicator noted that the concept of reasonableness is different from that of appropriateness confirmed that the offer must therefore be assessed in the context of what the complainant could reasonably be expected to achieve before a board of adjudication, based on the allegations and any admissions which have been made, and the available remedies. She considered the range of general damages awards in Manitoba and what compensation, if any, might reasonably be awarded to the complainant for financial losses sustained, expenses incurred or benefits lost. She noted that because the allegations of the complainant suggested that the complainant was effectively forced out of her employment or constructively dismissed, as opposed to having quit, the respondent would reasonable be expected to put the complainant in the position she would have been in if the discrimination had not occurred, which differs from the remedy of reasonable notice or wages in lieu of notice in a claim for wrongful dismissal at common law, which depends on the length of time that an employee was employed. The Adjudicator noted that the offer does not contemplate any remedial measures in the public interest such as training or the circulation and posting of a harassment policy, but did not comment in detail on this point. The Adjudicator ultimately determined that the respondent's offer did not adequately address the relief which the complainant could reasonably expect to obtain under The Human Rights Code.

Full text decision

Blatz v. 4L Communications Inc. - June 2012

Blatz v. 4L Communications Inc.
(2012)(Preliminary Matter)

SUMMARY

The complainant sued her former employer for wrongful dismissal. At the same time, she filed a human rights complaint against her former employer under section 14 of The Human Rights Code alleging that she had been discriminated against on the basis of her sex including her pregnancy. The employer sought to defer the hearing of the human rights complaint until the law suit had concluded in the courts.

The adjudicator granted the employer's request in part and determined that an adjudicator has the authority to defer a hearing of a human rights complaint. Although The Code requires that an adjudicator must proceed to a hearing "without undue delay", he or she must consider the specific circumstances of the complaint, including the requirement of fairness, respect for parties, protecting the integrity of the process, and policy considerations.

In this particular complaint, the adjudicator decided that a delay would not be undue. The law suit which was in essence, an employment dispute with a human rights component, belongs first in the courts where employment matters are routinely heard.

The adjudicator was not prepared to provide an open-ended deferral and therefore ordered an 18-month deferral, allowing the parties to apply in the meantime to shorten or extend that delay.

Full text decision

Chestnut v. Theo C Limited o/a Hampton Inn & Suites - May 2012

Chestnut v. Theo C Limited o/a Hampton Inn & Suites
(2012)(Adjudication)

SUMMARY

The complainant filed a complaint against her former employer under section 14 of The Human Rights Code alleging her employer discriminated against her in her employment by failing to reasonably accommodate her special needs related to her disability (Osteoporosis) and instead, terminated her employment.

The respondent took the position that it had not discriminated against the complainant in any way and that the complainant was not unable to perform her job duties.

The Adjudicator accepted that the Complainant experienced symptoms of back pain and fatigue, which affected her ability to perform her job duties as a housekeeper and constituted a disability. He determined that the respondent was not aware of its obligation to provide reasonable accommodation in the workplace and had failed to make inquires with respect to the Complainant’s disability. The Adjudicator therefore determined that the respondent had contravened section 14 of The Human Rights Code.

Remedy: The Adjudicator awarded the complainant $2,000 in general damages for injury to her dignity, self respect and feelings and one month’s lost wages in the amount of $1,650. He ordered the respondent to develop a reasonable accommodation policy in consultation with the Commission within three months of the decision and to post that policy it its staffroom and provide it to all current and future staff. He further ordered two members of management to attend a workshop on reasonable accommodation conducted by the Commission, by the end of 2012.

Full text decision

Kallen v. Midwest Pallet Works Ltd. - January 2012

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.

Full text decision

Canadian Blood Services - December 2011

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.

Full text decision

Pollock et al. v. Winnipeg Condominium Corporation No. 30 - October 2011

Pollock et al. v. Winnipeg Condominium Corporation No. 30
(October 2011)(Adjudication - Preliminary Matters)

SUMMARY

The complainants made an application to the Adjudicator relating to the Manitoba Human Rights Commission's jurisdiction to terminate all proceedings, including the adjudication, after complaints have been referred to adjudication and to withdraw from the proceedings. Some of the complainants also requested to amend their complaints to include allegations of reprisal, and funding to retain counsel and pay witness fees and expenses in the event that the Commission withdraws from the adjudication. There were also various other requests to accommodate the special needs of the complainants and their witnesses with respect to the adjudication hearing.

The complainants argued that the Commission was functus officio once it had referred a complaint to adjudication and could no longer consider further offers of settlement by the respondent. The Commission argued amongst other things that the complainant's approach undermines the legislature's objective with little added benefit for complainants or for the public's interest in remedying and preventing discrimination and accordingly requested a ruling that an adjudicator under The Code may not continue an adjudication if the Commission has terminated proceedings under clause 29(2)(b).

The Adjudicator found that the Commission is functus officio in terms of its section 29 powers and therefore an interpretation of The Code which would allow the Commission to unilaterally terminate the adjudication, at presumably any time prior to its completion, would be inconsistent with the independent status and statutory duty of an adjudicator to adjudicate the complaint.

In light of the foregoing determination, the complainants argued that the Commission should not be permitted to withdraw from the adjudication proceedings. The Adjudicator agreed that pursuant to section 34, the Commission is a party to the adjudication whose role is to represent and advance the public interest, which may include advocating for the interests of the complainant, but it is not required under the statute to do so. The Commission may continue to assess whether it would be in the public interest to settle a matter on terms as set forth by the respondent, but the Commission cannot withdraw from the adjudication. The Commission can, however, withdraw from actively participating in the proceedings.

The complainants argued that if the Commission is entitled to withdraw from actively participating in the adjudication, the Government of Manitoba be required to fund or provide legal counsel at no cost to the complainants. The Adjudicator determined that there is no basis for an order requiring or requesting the Government to fund or provide legal counsel to the complainants for the adjudication of their complaints, nor for an order requiring the Commission to pay one of the complainant's expenses for attending and participating at the hearing of her complaint.

The Adjudicator was not prepared to amend the complaints to include allegations of reprisal on the basis of the factual information provided to her, nor was she prepared to determine the matter of certain accommodations requested. She was however, prepared to allow one of the complainants to act on behalf of another on an unpaid basis.

Full text decision

Willcox v. Ladco Company Limited o/a Lakewood Agencies - March 2011

Willcox v. Ladco Company Limited o/a Lakewood Agencies
(2011)(Adjudication - Preliminary Matter)

SUMMARY

The respondent made an application to the Adjudicator pursuant to subsection 36(2) of The Human Rights Code that its name not be disclosed in the Notice of Hearing which must be published in the Manitoba Gazette and the Winnipeg Free Press, concerning a complaint against it alleging a failure to accommodate under section 14 of The Human Rights Code.

The respondent argued that there is a stigma associated with being alleged to have breached a provision of The Human Rights Code which does not apply to other civil proceedings. It took the position that it deals with a broad cross-section of the public in connection with accommodation and that it would be prejudicial to have published the allegation that it had breached The Human Rights Code and in addition, none of the allegations have yet been proven.

The Commission opposed the application on the basis that the wording of subsection 36(2) specifically requires that the parties to an adjudication be named in the public Notice, unless the adjudicator "decides that it would be unduly prejudicial in the circumstances to disclose the names of some or all of the parties prior to the hearing". It argued the term "unduly prejudicial" should be interpreted to mean more than mere prejudice that might arise in an administrative proceeding, and rather, sufficient prejudice to outweigh the public interest protected by The Human Rights Code.

The Adjudicator found that the intention of the legislation is for the hearings to be public and that the public have meaningful access to its hearings, unless to do so would cause undue prejudice to one of the parties. She referred to case authority that requires consideration of the rights of the parties and the efficacy of the administration of justice and determined that the respondent's privacy interests did not outweigh the public's right to access information about the adjudication proceeding.

The Adjudicator denied the respondent's request to remove its name from the public Notice of Hearing.

Full text decision

Hiebert v. Martin Liberty Ltd. - November 2009

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.

Full text decision

Penner v. Fort Garry Services Inc. - November 2009

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.

Full text decision

Ursel v. LMG Properties Ltd. O/A Bay Hill Inns and Suites - June 2009

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.

Full text decision

L.H. v. Vietnamese Non-Profit Housing Corporation – March 2007

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.

Full text decision

Richard v. BYHA Inc. - October 2006

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.

Full text decision

Pasternak v. Manitoba High School Athletic Association Inc. - September 2006

Pasternak v. Manitoba High Schools Athletic Association Inc. (No. 2)
(September 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.

Full text decision

Pasternak v. Manitoba High School Athletic Association Inc.- June 2006

Pasternak v. Manitoba High Schools Athletic Association Inc. (No. 1)
(June 2006)(Adjudication Preliminary Matter)

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.

Full text decision

J.D. v. C. N. - August 2005

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.

Full text decision

A. v. Natural Progress Inc. or Little Chief's Place – January 2005

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.

Full text decision

Dubeck v. VY-CON Construction - December 2002

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.

Full text decision

Budge v. Thorvaldson Care Homes Ltd. - March 2002

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.

Full text decision

Morriseau v. Paisley Park – December 2000

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.

Full text decision

Schroen v. Steinbach Bible College - July 1999

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.

Full text decision

Bourrier v. V. Phil-Can Services Ltd. – January 1999

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.

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Werestiuk v. Small Business Services Inc. and K. Reyes - October 1998

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.

Full text decision

Vogel v. The Government of Manitoba et al - 1997

Vogel v. The Government of 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.

Full text decision

Judicial Reviews

Northern Regional Health Authority v. Manitoba Human Rights Commission and Linda Horrocks

Northern Regional Health Authority v. Manitoba Human Rights Commission and Linda Horrocks
(2016) (Court of Queen's Bench of Manitoba)

Full text decision

University of Manitoba v. Manitoba Human Rights Commission and Damianakos

University of Manitoba v. Manitoba Human Rights Commission and Damianakos
(2016) (The Queen's Bench Winnipeg Centre)

Full text decision

The Manitoba Human Rights Commission and Brockmeyer v. The Cornerstone Housing Corp.

The Manitoba Human Rights Commission and Brockmeyer v. The Cornerstone Housing Corp.
(2016) (The Queen's Bench General Division Winnipeg Centre)

Full text decision

Manitoba Human Rights Commission and Etabezahu Metaser v. Jewish Community Campus of Winnipeg Inc - March 2015

Manitoba Human Rights Commission and Etabezahu Metaser v. Jewish Community Campus of Winnipeg Inc
(2015)(Manitoba Court of Queen's Bench)

SUMMARY

[1] The Manitoba Human Rights Commission (the “Commission”) brought an application for judicial review seeking an order quashing the decision of an adjudicator appointed under The Human Rights Code, C.C.S.M., c. H175 (the “Code”) and sending the issue back for redetermination by another adjudicator.

[2] The adjudicator had been appointed to determine a complaint brought by Etabezahu Metaser (the “complainant”) against her employer, the respondent, Jewish Community Campus of Winnipeg Inc. (the “JCC”).

[3] Prior to the hearing of the complaint, the JCC made a written settlement offer to the complainant, which she rejected. The JCC then requested that the adjudicator determine under s. 37.1 of the Code whether the offer was reasonable.

[4] The adjudicator held a hearing on the issue and rendered his decision on September 25, 2013, in which, for the reasons that will be described herein, he found that the settlement offer was reasonable and accordingly terminated the adjudication. See Metaser v. Jewish Community Campus of Winnipeg Inc., 2013 MHRBAD 6, 2013 CanLII 61017 (MB HRC).

[5] The Commission has applied to this court for judicial review of the adjudicator’s decision.


Full text decision

Canadian Blood Services v. Manitoba Human Rights Commission and X - December 2011

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.

Full text decision

Korsch v. Pritchard Engineering Company Limited - September 2011

Korsch v. Pritchard Engineering Company Limited
(2011)(Judicial Review)

SUMMARY

Summary not available

Full text decision

Manitoba High Schools Athletic Association Inc. v. Pasternak - 2008

Manitoba High Schools Athletic Association 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.

Full text decision

Thorvaldson Care Homes Ltd. v. Budge - 2006

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.

Thorvaldson Care Homes Ltd. v. Budge - 2005

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.