Appendix 2 - Review of Jurisprudence

Article 1: Definition of Discrimination

In Gosselin v. Quebec, [2002] S.C.J. No. 85, the Supreme Court of Canada (S.C.C.) reasserted that an infringement of human dignity is the fundamental reference point for any evaluation of a discrimination claim. As previously stated in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law], the question before the Court in a constitutional equality rights claim is whether human dignity is denied in purpose or effect. In Gosselin, the Court set out two broad principles to guide this analysis: (1) differential treatment based on stereotype or prejudice is a determining factor in the finding of an infringement of human dignity in the course of a contextual inquiry regarding discrimination, and (2) the reasonable claimant is the perspective from which to evaluate an equality rights claim (section 15 of theCanadian Charter of Rights and Freedoms (Charter)).

In Vancouver Rape Relief Society v. Nixon, [2005] B.C.J. No. 2647, the British Colombia Court of Appeal affirmed that, under s. 41 of that province's Human Rights Code, non-profit organizations aimed at promoting the interests or welfare of an identifiable group may give preference to certain members of that group for employment purposes, at the exclusion of other members of that group, despite it being a discriminatory practice. The preference must be both rationally connected to the organization's purpose and in good faith. In this case, Ms. Nixon, a post-operative male-to-female transsexual woman was excluded from volunteering for the Society on the basis that she had not been a woman all her life and so had not experienced oppression since birth. The Court found the distinction acceptable. The Society was not required to show that it only served women who had been women all their lives in order to legitimately exclude Ms. Nixon, as it was entitled to exercise internal preference for employment purposes within the group it served.

In Nova Scotia (Human Rights Commission) v. Play it Again Sports, [2004] N.S.J. No. 403, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 567, the Nova Scotia Court of Appeal upheld a Human Rights Commission decision that the fact that a young Mi'kmaq woman's supervisor repeatedly referred to her as “ kemosabe" was not necessarily indicative of racial discrimination, nor of discrimination based on sex. There was conflicting evidence as to whether the word “ kemosabe" was offensive to Aboriginal women. The Court found that where the offensiveness of the utterance lay in the eye of the beholder, it was not unreasonable to require that the beholder make known that the conduct was offensive to her. An application for leave to appeal to the Supreme Court of Canada was dismissed.

In Sagkeeng Child and Family Services v. A.R.W. [2006] M.J. No. 415 (Manitoba Court of Queen's Bench (Family Division)), a mentally ill mother claimed that the provisions of ss. 41(1) [limits on the period of temporary guardianship] and 45(1) [effect of an order of permanent guardianship] of The Child and Family Services Act “ discriminate against mentally ill parents whose children are subject to applications for permanent guardianship, and therefore, adoption proceedings when compared with mentally ill parents who are subject to custody proceedings under the Divorce Act". During her argument, the mother raised the question of whether s. 45(1) of the Child and Family Services Act is discriminatory in its effect because of its disproportionate impact on Aboriginal people, particularly Aboriginal women, and therefore was a breach of s. 15 of the Charter. The court agreed with the Attorney General's response that there was no evidence to prove the disproportionate impact. If there were evidence of the impact, the separate First Nations child welfare system was specifically created in Manitoba to respect the disadvantaged position of Aboriginals. Furthermore, the special needs and considerations of the Aboriginal mother were respected in this case as the agency involved was an Aboriginal agency.

In Québec (Commission des droits de la personne et des droits de la jeunesse) et Giguère c. Montréal (Ville) , 2003 QCTDP 88, the Québec Human Rights Tribunal concluded that a distinction based on breastfeeding is a distinction based on sex.

The longstanding legal principal that a distinction in treatment need not be intentional to constitute discrimination was affirmed by the Nova Scotia Board of Inquiry in Daniels v. Annapolis Valley Regional School Board [2002], 45 C.H.R.R. D/162 (N.S. Bd.Inq.), and by the Canadian Human Rights Tribunal in Montreuil v. National Bank of Canada, 2004 CHRT 7.

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Article 2: Anti-Discrimination Measures

Harassment

In Mowat v. Canada (Armed Forces) (No. 2), 2005 CHRT 31, the Canadian Human Rights Tribunal ordered the Canadian Armed Forces to pay $4,000 in damages for “ suffering in respect of feelings or self respect" to a female former Master Corporal for sexual harassment endured at the hands of another member of the Forces. This sexual harassment violated s. 14 of the Canadian Human Rights Act. The complainant had reported the behaviour to her superiors, who failed to take adequate steps to stop the harassment.

In Yee (c.o.b. Market Place Restaurant) v. McLean, [2005] ABQB 470, the Alberta Court of Queen's Bench upheld a Human Rights and Citizenship Commission's decision that Mr. Yee, the employer of Ms. McLean, discriminated against her based on her sex by making advances and touching her, and by dismissing her from her job when she complained of his behaviour. Mr. Yee admitted to touching Ms. McLean, but insisted that she had instigated the behaviour. He objected that the Commission had not allowed him to present character evidence about himself and Ms. McLean which he claimed would demonstrate an ulterior motive for her accusation. Erb J. found the exclusion of character evidence was appropriate and that “ whatever his [Mr. Yee's] motivations, his conduct was inappropriate in the work place, was of a sexual nature and, in my opinion on a review of the evidence, was unwelcome." Because of the inappropriate nature of his actions, character evidence would not affect Mr. Yee's case.

In Québec (Commission des droits de la personne et des droits de la jeunesse) c. Caisse Populaire Desjardins d'Amqui, 2003 QCTDP 105, the Québec Human Rights Tribunal found that numerous subtle and difficult to define, but unwanted, acts (some of which may have had sexual innuendo) of a male employer towards a female employee amounted to sexual harassment. In addition, the harassment interfered with the employee's right to conditions of employment free of discrimination based on sex. In this case, the Tribunal examined the standards related to sexual harassment and equality in employment and referred to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and also to paragraphs 17 and 19 of the CEDAW Committee's General Recommendation 19, which notes that “ sexual harassment in the work environment can be considered discriminatory when a woman is justified in believing that her refusal of such conduct may disadvantage her in her employment.

In Budge v. Thorvaldson Care Homes Ltd., [2002] M.H.R.B.A.D. No. 1, a woman who worked in a personal care home was subjected to sexual harassment over a period of nine months by the maintenance man employed by the home. Her employer was found liable under The Human Rights Code of Manitoba for failing to take reasonable steps to stop the harassment once it became aware it was going on and for terminating her employment due to her complaint about the harassment. She was awarded lost income and general damages and the employer was ordered to adopt and post a harassment policy. A subsequent judicial review application and appeal to the Manitoba Court of Appeal by the employer challenging the decision of the independent adjudicator appointed under the Code were both dismissed.

In D'Heilly v. Neufeld, [2005] M.H.R.B.A.D. No. 2, a woman who worked in a store that sold communications equipment such as cell phones was subjected to sexual harassment and reprisals by the sales manager. Her employer was found liable under The Human Rights Code of Manitoba for failing to take reasonable steps to stop the harassment once it became aware it was going on and for terminating her employment due to her complaint about the harassment. She was awarded lost income and general damages.

Protection of legal rights

In Québec (Attorney General) v. Québec (Human Rights Tribunal), [2004] S.C.R. 223, the Supreme Court of Canada held (four in favour and three dissenting) that complaints of discrimination, such as gender discrimination, could not be brought before the province's Human Rights Tribunal where the legislator intended another body equally empowered to apply the Québec Charter to have exclusive jurisdiction. This case concerned a woman who had been receiving social assistance benefits to complement her salary through a provincial program for low-income families where at least one adult was receiving employment income. In accordance with the legislation, she was subsequently denied social assistance benefits through the program during her maternity leave because the employment insurance benefits that she received as maternity benefits were not considered “ income" for the purpose of the program. The majority of the Court believed that there was clear legislative intent that the Commission des affaires sociales (CAS, henceforth the Tribunal administratif du Québec (TAQ)) should have exclusive jurisdiction to apply and interpret the benefits scheme, and that this tribunal did not lose its jurisdiction just because a human rights issue arose. In fact, the CAS was empowered to decide upon questions of rights in accordance with sections 78 and 81 of the Act respecting income security; this power included the consideration of discrimination. As a result, the woman therefore had to bring her sex discrimination complaint to the competent tribunal for adjudication. The dissenting judges considered that because the dispute was essentially about discrimination on the ground of pregnancy, rather than over a ministerial ruling on security benefits, the CAS could not have exclusive jurisdiction; they found the Human Rights Tribunal to be the “ best fit" for hearing the complaint.

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Article 3: Measures to Ensure the Advancement of Women

Violence against women

In R. v. Humaid, [2006] O.J. No. 1507 , leave to appeal to S.C.C. refused, the Ontario Court of Appeal upheld a conviction of first degree murder for a man accused of stabbing his wife to death upon learning of her infidelity. Both the husband and wife were originally from Dubai and of Islamic faith. The accused contested the conviction on the basis that the trial judge had instructed the jury not to consider evidence of an expert on Islamic religion and culture. Provided in support of a provocation defence, the evidence was about the significant effect of infidelity in Islamic culture, how it is not tolerated and is worthy of punishment by male members of the family. The Court of Appeal held that expert's evidence could not lend any air of reality to the provocation defence, because an accused who acts out of a sense of retribution fuelled by a belief system that entitles a husband to punish his wife's perceived infidelity has not lost self-control.

In R. v. Ashlee, [2006] A.J. No. 1040, the Alberta Court of Appeal restored a conviction for sexual assault on an unconscious woman. The Court of Appeal clarified that neither implied nor possible prior consent to sexual activity are available legal defences to sexual activity. The Court indicated that even if the compliant had consented to sexual activity prior to loosing consciousness, which was not established in this case, once unconscious, the complainant was no longer capable of providing consent.

In R. v. Dick [2006], 203 C.C.C. (3d) 365, the Ontario Superior Court of Justice held that the provincial Sex Offender Registry, which requires persons convicted of sex offences to register with the police, did not violate the constitutional right not to be deprived of liberty save in accordance with the principles of fundamental justice. The obligation to register placed only modest restrictions on the offender's liberty, while the harm sought to be prevented was a reasonable apprehension of serious harm. The measures were not disproportionate to the possible harm.

In R. v. J.(J.) [2004], 192 C.C.C. (3d) 30, the Newfoundland and Labrador Court of Appeal considered the applicability of sentencing circles for Aboriginal persons accused of sexual assaults. While the Court agreed with the decision in R. v. Taylor (1998), 122 C.C.C. (3d) 376, that a serious sexual assault does not automatically rule out a sentencing circle, it asserted that such an assault should at least require the Trial Judge to address whether or not a sentencing circle should be used. Amongst other factors to consider, the victim must consent to the sentencing circle, and this consent must be given free of pressure.

Under s. 718.2 of the Criminal Code of Canada, evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner is an aggravating factor that increases a sentence. In R. v. Chénier [2004], 191 C.C.C. (3d) 512, the Québec Court of Appeal held that a conditional sentence was insufficient for a man convicted of violent assault and death threats against his ex-common law partner, as it prioritized the sentencing goal of rehabilitation over the goal of deterring the serious problem of domestic violence, and failed to give adequate consideration to the aggravating factors as defined in section 718.2 of the Code.

In R. v. Morris [2004], 186 C.C.C. (3d) 549, the British Columbia Court of Appeal determined that a suspended sentence was inadequate for an Aboriginal chief convicted of confining and brutally beating his wife. While C ourts must take account of the Aboriginal background of the offender, this is not to the exclusion of all other sentencing objectives. The more serious the offence, the more likely it is that Aboriginal and non-Aboriginal offenders should be sentenced similarly. Furthermore, s. 718.2 of the Criminal Code must also be considered in sentencing Aboriginal domestic violence offenders.

In R. v. B. (K.G.) [2005], 202 C.C.C. (3d) 521, a young offender was convicted of sexually assaulting a 15-year old girl who had passed out because of alcohol intoxication. The New Brunswick Court of Appeal held that a trial judge had erred by failing to characterize the assault as a “ serious violent offence." The Court recalled that “ bodily harm" is defined in the Criminal Code as “ any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature," and that this hurt or injury may be physical or psychological in nature. A non-custodial sentence was replaced with a custodial sentence.

In R. v. G.P.J. [2001] M.J. No. 53 (CA), a sexual assault case, the trial judge found that the production of the complainant's counseling records were necessary to allow the accused to make full answer and defence. The records were used to assess the complainant's evidence, which was ultimately rejected. The decision was appealed by the Crown. The Manitoba Court of Appeal upheld this decision.

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Article 5: Stereotyping

In R. v. Hamilton, [2004] O.J. No. 3252, the Ontario Court of Appeal declared that a trial judge had erred in imposing conditional sentences (non-custodial) on two single young black women with young children, who were convicted of importing cocaine into Canada. The trial judge had concluded, based on his own materials and experience, that Hamilton and Mason were the victims of systemic racial and gender bias which led to their impoverished circumstances and made them vulnerable to those seeking cocaine couriers. He found that this was a mitigating factor in sentencing. The Court of Appeal said that that the trial judge overstepped his power by introducing his own evidence and relying on it so strongly without expert evidence. Furthermore, the fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in itself justify any mitigation of sentence.  The Court believed that imposition of conditional sentences for these offences encouraged the recruitment of young black poor women with no criminal records to carry cocaine into Canada from Jamaica and increased the vulnerability of persons like the accused.

In College of Chiropractors of Ontario v. Kovacs, [2004] O.J. No. 4353, the Ontario Superior Court of Justice found that the College's Discipline Committee erred in dismissing a case of alleged sexual assault. The Committee's decision rested on stereotypes about both possible victims of sexual assault and possible perpetrators. It assumed that a woman, especially a trained nurse, would have responded in a particular way to sexual assault. The Court said that other factors in the situation had to be considered, such as the woman's age, and the fact that she was alone with the respondent. The Committee had also assumed that a person in the respondent's position would be unlikely to commit the alleged acts. The Court emphasized that “ egregious as the alleged acts are, there are many examples of individuals in a position of power who have sexually abused others, whether patients, students or other vulnerable individuals." The Committee should not have treated this as a factor tending to disprove the case.

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Article 6: Trafficking of Women and Exploitation

While prostitution itself is not a criminal offence, living wholly or in part off the avails of prostitution is criminalized under s.212(1)(j) of the Criminal Code . The Government of Canada continues to prosecute, and the courts continue to impose sentences on persons living off the avails of prostitution (See for example R. v. Lukacko, [2002] O.J. No. 1293, Ontario Court of Appeal; R. v. Thomas, [2003] O.J. No. 6137, Ontario Superior Court of Justice; R. v. M.S., [2006] O.J. No. 1347, Ontario Superior Court of Justice). Harsher sentences will be imposed on the individual if the women being forced to prostitute themselves are under the age of 18 (R. v. Bennett (2004), 184 C.C.C. (3d) 290, Ontario Court of Appeal).

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Article 11: Employment

Pregnancy

In Woo v. Alberta (Human Rights and Citizenship Commission), [2003] ABQB 632, aff'd [2005] A.J. No. 232, the Alberta Queen's Bench considered the issue of discrimination in employment because of pregnancy. The Employment Standards Code of Alberta provides that women who have worked consecutively for 52 weeks for an employer are entitled to maternity leave without pay. Ms. Woo had been employed as vice-principal for less than this period, but the Court determined that her dismissal upon requesting maternity leave violated her right not be discriminated against because of her sex, and that the school board had a responsibility to accommodate her. The Court further found the school board had discriminated against both Ms. Woo and Ms. Jahelka, a pregnant woman, by failing to consider them for other vice-principal positions and instead giving the position to a less qualified candidate. The employer had a duty to accommodate Ms. Jahelka unless it would cause “ undue hardship."

In Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324, [2003] 2 S.C.R. 157, the Supreme Court of Canada averred that the substantive rights and obligations of the Ontario Human Rights Code and Employment Standards Act are incorporated into all collective agreements of employment. Under a collective agreement, the broad rights of an employer are subject not only to the express provisions of the collective agreement, but also to statutory provisions of the Human Rights Code and other employment-related statutes. Human rights and other employment-related statutes establish a floor beneath which an employer and union cannot contract. Consequently, the province's Labour Relations Arbitration Board has the power to enforce the rights and obligations of the Human Rights Code. In this case, a female employee subject to a collective agreement left on maternity leave while still in her probationary period and was subsequently dismissed. Her terms of employment were governed by a collective agreement, which stated that "a probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties". The Supreme Court confirmed the Board's holding that the employee's right under the Human Rights Code and Employment Standards Act not to be discriminated against on the basis of pregnancy had been violated, despite the collective agreement's probationary provision.

In Crockett v. Goodman, 2005 BCHRT 471, the British Columbia Human Rights Tribunal awarded damages to a hairdresser whose employer had failed to reasonably accommodate her by allowing her to take more frequent breaks while she was pregnant with twins. Her employer expected her to carry on as always or go on maternity leave, which ultimately resulted in her taking maternity leave one month earlier than planned, thereby losing income. The employer's anger towards her also made it impossible for her to return to that work environment after her maternity leave, which amounted to sex discrimination. Consequently, the Tribunal awarded her damages to cover revenue lost while she reestablished herself and built a new clientele.

In Sidhu v. Broadway Gallery (c.o.b. Takamatsu Bonsai Design) , [2002] B.C.H.R.T.D. No. 9, the British Columbia Human Rights Tribunal found that a pregnant woman established a prima facie case of discrimination when she showed that her employer substantially reduced her work hours at a bonsai tree nursery immediately after she produced a medical note saying that she should not lift heavy weight or be spraying pesticides. She was entitled to compensation for lost wages and for injury to her dignity.

In Serben v. Kicks Cantina Inc. [2005], CHRR Doc. 05-159 (Alta. H.R.P.), a female employee had been dismissed from her work as a bartender just a couple months before she was to go on maternity leave, when the manager found that she could no longer fulfill all her duties. No effort was made to accommodate her. The Alberta Human Rights Panel found the employer had discriminated against Ms. Serben based on her sex, and ordered that damages be paid.

In Patterson v. Seggie , 2004 BCHRT 2, the British Columbia Human Rights Tribunal awarded damages to a pregnant woman who was let go from her job at a fish and chips stand after she had to leave work one morning because of nausea. Because her pregnancy was a factor in the decision to fire her, there was prima facie discrimination on account of sex, contrary to s. 13 of the provincial Human Rights Code.

Sex discrimination in the workplace

In Mottu v. MacLeod , 2004 BCHRT 76, the British Columbia Human Rights Tribunal found that nightclub owners had discriminated against Ms. Mottu, an employee, by requiring her to wear an outfit that was gender-specific and sexual in nature, and by retaliating against her by limiting her shifts and humiliating her when she refused to wear it. The Tribunal ordered the respondents to pay Ms. Mottu compensation for lost wages and tips, and $3,000 as compensation for injury to dignity, feelings and self-respect.

In Montreuil v. National Bank of Canada, 2004 CHRT 7, the Canadian Human Rights Tribunal determined that the Bank had discriminated against Ms. Montreuil, who was physically and legally a man, but who identified herself as a woman, on the basis of sex when it failed to hire her for a call centre position.

In Repas-Barrett v. Canadian Special Service Ltd [2003], CHRR Doc. 03-114 (Alta. H.R.P.), the Alberta Human Rights Panel awarded damages for loss of earnings and for indignity and loss of self-respect to a complainant who was discriminated against because of her sex. The Panel found gender discrimination on two counts: first, when her employer made remarks to her on the basis of her gender, and second, when her pregnancy was a direct causative factor in her dismissal.

In Prince Edward Island Human Rights Panel DeWare v. Kensington (2003), 45 C.H.R.R. D/244 (P.E.I.H.R.P.), the Prince Edward Island Human Rights Panel ruled that the Town of Kensington discriminated against Lorna DeWare by refusing to employ her as a Summer Constable because of her sex, and by paying her less than a male employee for performing the same work. The Panel ordered the Town to apologize to Ms. DeWare, to compensate her for the financial loss caused by the discrimination, and to pay her $4,000 as general damages for the injury to her dignity.

In Dubeck v. Friesen (c.o.b. Vy-con Construction) , [2002] M.H.R.B.A.D. No. 2, a woman working at a construction firm was awarded general damages and lost income by an independent adjudicator appointed under The Human Rights Code of Manitoba on the basis that she was denied work assignments and laid off because she was female.

Pay equity

In Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2006] SCC 1, the Supreme Court of Canada upheld a Federal Court of Appeal ruling establishing that employees in different occupations governed by separate collective agreements with the same employer may nonetheless be deemed to work in the same "establishment" for the purpose of making pay equity comparisons under the Canadian Human Rights Act. The Canadian Human Rights Commission must compare the salaries and working conditions of Air Canada's predominantly female attendants to those of the airline's pilots and mechanics, who are mostly male, despite the fact that these groups of employees are governed by different collective agreements with the airline. The Court ruled that they are part of the same "establishment" for purposes of equal pay for work of equal value because they are subject to a "common personnel and wage policy."

In P.S.A.C. v. Canada Post Corporation (No. 6), 2005 CHRT 39, the Canadian Human Rights Tribunal held that the respondent Canada Post was in violation of s. 11 of the Canadian Human Rights Act, which prohibits discrimination on the basis of sex. Canada Post had been paying employees in the female-dominated Clerical and Regulatory Group less than employees in the male-dominated Postal Operations Group for work of equal value. It ordered the respondent to equalize pay, and to compensate the complainants with lost wages dating back to one year before the initial claim was made (1982).

In Syndicat de la fonction publique c. Procureur général du Québec, [2004] J.Q. No. 21, a judge of the Québec Superior Court struck down Chapter IX of the province's Pay Equity Act, holding that it violated women's equality rights guaranteed by section 15 of the Canadian Charter of Rights and Freedoms. The impugned section exempted employers who had established a pay equity plan prior to the Act's introduction in 1996 from complying with provisions of the general regime applicable to other employers. However, they had to demonstrate to the Commission de l'équité salariale that their plan satisfied certain important requirements of the Act, including the requirement that no element of the plan discriminate on the basis of gender. The Government of Québec, as well as numerous municipalities and educational institutions had reported on their pay equity plans, which had generally received the endorsement of the Commission. However, the exempted employers' pay equity plans had not necessarily been elaborated on the basis of applicable requirements of the general regime of the Act. The Court held that the standards for elaborating the plans prescribed by section IX were lower, the effect of which was to create or maintain inequality with respect to the female workers affected, contrary to the Canadian Charter of Rights and Freedoms. Neither the Government nor the other employers targeted by the Act, appealed the decision. The employers concerned, including the Government, are subject to the general regime of the Act.

In Newfoundland (Treasury Board) v. N.A.P.E, [2004] 3 S.C.R. 381, the Supreme Court of Canada considered whether the Newfoundland government's deferral of a Pay Equity Agreement in favour of female employees in the health care sector and the extinguishment of three years of arrears owed to the employees violated the women's equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms. The Government took these measures in a period of unprecedented financial crisis. Simultaneously, it took other severe measures to reduce the provincial deficit, including budgetary cuts to hospitals and school; however, no similar cuts were imposed on people working in male-dominated jobs performing work of equal value. The Court found the measures to be discriminatory. However, the Court decided that the discrimination was justifiable under s. 1 of the Charter because the financial crisis was exceptionally severe and addressing it was a “ pressing and substantial legislative objective." Deferring pay equity was “ proportional to its objective" and tailored to minimally impair rights in the context of the problem (a pay equity program continued to be implemented albeit at a much slower pace). Importantly in this case, the Court found that the financial health of the Government as a whole was at risk, and that the harm caused by the Charter violation was lesser than the harm averted, as the measures helped allow the province to continue to provide essential programs. Despite the fact that the Supreme Court's decision meant that the employees had no legal right to payments of arrears, in March 2006, the Government of Newfoundland agreed to the request of the unions to be granted a $24 million ex gratia payment.

In Reid v. Vancouver Police Board, [2005] B.C.J. No. 1832, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 463, the British Columbia Court of Appeal reinstated a Human Rights Tribunal decision that a 40 percent wage discrepancy between dispatchers for the fire department, who are mostly male, and police dispatchers, who are mostly female, did not discriminate against the women because while fire department dispatchers were City of Vancouver employees, police dispatchers were Police Board Employees. This overturned the B.C. Supreme Court's 2003 ruling that both sets of dispatchers were effectively employed by the City because the City ultimately paid the Police Board's bills. The Court of Appeal found that because the Police Board set the pay scale for the police dispatchers, the City was not empowered to provide a remedy to the Police Board employees and so the salaries of fire department dispatchers and police department dispatchers could not be compared. An application for leave to appeal to the Supreme Court of Canada was dismissed.

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Article 12: Health

In Jane Doe 1 v. Manitoba, [2004] M.J. No. 456, rev'd. [2005] M.J. No. 335, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 513, the Manitoba Court of Queen's Bench declared that provisions of the province's Health Services Insurance Act (HSIA), which limited insured therapeutic abortions to hospitals, were in violation of security of the person and equality rights under the Canadian Charter of Rights and Freedoms. The two litigants were required to pay for their own abortions at the Morgentaler Clinic in Winnipeg after learning of a lengthy wait for a hospital abortion. The Court found that “ depriving a woman of her right to decide when and where she will undergo the procedure of a therapeutic abortion threatens the woman in a physical sense and that the agony caused by not knowing whether an abortion will be performed in time is bound to inflict emotional distress and serious psychological harm upon her." The Court declared the HSIA provisions invalid for violating women's rights under sections 7 and 15 of the Charter. This case, which was decided on summary judgment, was appealed by the Crown, and the appellate court ordered that a full trial be held due to the complexity of the issues. An appeal to the Supreme Court was refused. The full trial is still pending.

In Canada (Attorney General) v. Canada (Human Rights Commission) and Kavanagh, [2003] FCT 89, the Federal Court Trial Division upheld a ruling by the Canadian Human Rights Tribunal establishing that discrimination on the basis of transsexualism constituted discrimination on the basis of sex as well as on the basis of disability. The Court determined that Corrections Canada's blanket policy prohibiting sex reassignment surgery discriminated against inmates diagnosed with gender identity disorder. Corrections Canada is required to provide essential health care to inmates. Therefore, if sex-reassignment surgery is determined to be essential it would be discriminatory not to provide it. However, male-to-female transsexuals did not have a right to be held in female penitentiary institutions prior to surgery, due to potential risk to female inmates.

In Hogan v. Ontario (Ministry of Health and Long-Term Care) (No. 3) [2005], CHRR Doc. 05-702, 2005 HRTO 49, the Ontario Human Rights Tribunal issued an interim decision about whether the provincial government's cutting of public funding for sex reassignment surgery discriminated against transsexual persons because of disability and sex. The Tribunal found that the new policy was discriminatory on the ground of disability. Whether it is also discriminatory on the ground of sex will be addressed in the final decision, which has yet to be issued. The British Columbia Human Rights Tribunal reached a similar conclusion in Waters v. British Columbia (Ministry of Health Services) 2003 BCHRT 13.

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Article 13: Economic and Social Life

The Supreme Court of Canada considered the constitutionality of the Government of Canada's parental benefits scheme under the Canadian Employment Insurance Act in Reference re Employment Insurance Act (Can), ss. 22 and 23, [2005] S.C.J. No. 57. The Government of Québec argued that this federal benefits program was essentially a social program designed to allow women to prepare for childbirth and to recuperate afterwards. The Supreme Court disagreed, finding that the benefits' primary effect was "to replace, in part ... [the] employment income of women while they are absent from work." Consequently, it fell under the Government of Canada's power to legislate in the area of unemployment benefits. The scheme was deemed constitutional, and so the Government of Canada continues to provide parental leave benefits.

In Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, the Supreme Court of Canada considered whether the Canada Pension Plan (CPP) was discriminatory against common law spouses that are no longer cohabiting at the time of the contributor's death, by excluding them from eligibility for a survivor's pension. Ms. Hodge had cohabited with her common law partner, a CPP contributor for over 20 years, when she left because of alleged abuse. Five months later, the contributor died, and the CPP denied Ms. Hodge a pension. She was no longer considered a spouse because, unlike married spouses, common law spouses cease to be “ spouses" upon the date of their final separation. However, the Court found that there was no discrimination, because former common law spouses had to be compared to former married spouses rather than to separated married spouses. Former married spouses (divorced) were not entitled to a CPP survivor's pension either.

In The Métis National Council of Women, Sheila D. Genaille v. Attorney General of Canada, 2006 FCA , leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 170, the Federal Court of Appeal dismissed the Métis National Council of Women's (MNCW) challenge to the decision of the Government of Canada not to permit them to become a party to the Framework Agreements of a program created for labour market development for Aboriginal people. Three other Aboriginal organizations were signatories to the Agreements and MNCW brought an application for judicial review and claimed that the Agreements breached the equality rights of Métis women under s.15 and s.28 of the Charter. The Court found that there was insufficient evidence that Métis women were not properly represented by the other Aboriginal organizations party to the Agreements or that Métis women had encountered difficulties in accessing programming or funding under the current arrangements.

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Article 16: Marriage and Family Life

Following Court of Appeal judgments in both Ontario and British Columbia which held that the definition of marriage as only being between one man and one woman violated equality rights of same-sex couples, the Governor in Council put forward a reference on proposed same-sex marriage legislation to the Supreme Court of Canada (Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698). The Court determined that expanding the definition of marriage to include same-sex couples did not violate the Constitution, and was consistent with the Charter. The Court further found that the Charter's freedom of religion protected religious officials from having to perform same-sex marriages that were contrary to their religious beliefs. After the reference, the Government tabled legislation expanding the definition of civil marriage to same-sex couples (Marriage Act 2005 c. 33).

In M.D.R. v. Ontario (Deputy Registrar General), [2006] O.J. No. 2268, the Ontario Superior Court held that birth registry provisions of the Vital Statistics Act, which restricted the particulars of lesbian co-mothers from being included on a child's Statement of Live Birth, infringed their right under s. 15 of the Canadian Charter of Rights and Freedoms to be protected against discrimination based on both sex and sexual orientation. The situation of lesbian co-mothers was compared to the situation of heterosexual non-biological fathers who planned a pregnancy with a spouse using assistive reproductive technology. The Act allowed these fathers' particulars to be recorded on the Statement of Live Birth. The distinction was discriminatory due to pre-existing disadvantage and stereotype, the lack of correspondence between the benefit and the needs of lesbian co-mothers who used reproductive technology and their children, and the engagement of core dignity interests. The provisions were not saved by s. 1 of the Charter and were declared invalid.

In Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835, the Supreme Court of Canada held that provisions of the provincial Vital Statistics Act which allowed a mother to register her child's live birth alone, and which precluded a father from having the registration altered, violated the father's right to equality. The impugned provisions discriminated against the father by exposing him to the possible arbitrary exclusion of his particulars from his children's birth registration and, consequently, of his participation in choosing their surname, on the enumerated ground of sex.

In Morriseau v. Wall (c.o.b. Paisley Park), [2000] M.H.R.B.A.D. No. 1, a woman who was asked to move from a seat within an antique shop to one on an outside patio in order to nurse her baby brought a complaint under The Human Rights Code of Manitoba. The independent adjudicator appointed under the Code recognized that women who need to breastfeed have a right to be accommodated under The Human Rights Code. However, this particular complaint was dismissed because the accommodation offered was reasonable in the circumstances.

In Canadian Foundation for Children, Youth and the Law v. Canada , [2004] S.C.J. No. 6, the Supreme Court of Canada cites CEDAW, articles 5(b) and 16(1)(d), for treating "the best interests of the child" as a legal principle. However, the "best interests of the child" failed to meet the second criterion for a principle of fundamental justice: consensus that the principle is vital or fundamental to our societal notion of justice. It was not a “ foundational requirement for the dispensation of justice."

In Hiemstra v. Hiemstra , [2005] A.J. No. 287, the Alberta Court of Queen's Bench refers to the section of the Supreme Court's decision in Canadian Foundation for Children, Youth and the Law v. Canada that cites CEDAW to stress the fundamental importance of determining child support in “ the best interests of the child.

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