UN panel calls on Canada to appoint extractive sector ombudsperson

An independent, well-resourced office for an ombudsperson that can investigate allegations and enforce orders on Canadian extractives’ overseas operations should be established by the federal government to provide effective remedies in a timely and inexpensive manner, recommends a United Nations working group on business and human rights.

The proposal is one of several made by the UN panel to ensure that federal and provincial governments strengthen access to both judicial and non-judicial remedial mechanisms to victims of human rights abuses.

“The suggestion of having an ombudsperson who has the ability to issue enforceable powers is something that the Canadian government should definitely look into and consider,” remarked Emily Dwyer, the coordinator of the Canadian Network on Corporate Accountability (CNCA), a coalition of labour, social justice, and human rights organizations that keeps an eye on the Canadian extractive sector’s efforts on human rights and the environment.

The CNCA has long campaigned for the creation of an office for an ombudsperson to handle the grievances of people affected by Canadian oil, gas and mining companies abroad. In November 2016, the CNCA published a model legislation shortly after disturbing findings were published by researchers organized by York University’s Osgoode Hall Law School.

The report details murders, rapes, beatings, and other injustices perpetrated against opponents of Canadian-owned mines between 2000 and 2015 by various actors. It noted at least 44 deaths and more than 400 people injured. The report “does not come to conclusions on whether there is any wrongdoing by any company in any specific instance, but rather shows that the magnitude of the harms and the proximity of the incidents to Canadian mining companies raises overarching concerns,” said the Justice and Corporate Accountability Project press release.

Canada is a key global player in the mining sector. It is home to more than half of the world’s mining companies, operating in Canada and across the globe. It is also a center for extractive sector finance, with 57 per cent of the world’s public mining companies listed on the Toronto Stock Exchange (TSX) and the TSX-Venture Exchange. All told, the extractive sector – mining, oil and gas extraction – in Canada accounts for approximately seven per cent of the country’s GDP, with the mining sector being the largest private sector employer, employing some 375,000 persons.

The model proposed by the CNCA doesn’t go as far as the one recommended by the UN panel. The UN panel says that “there is a role for an institution like an ombudsperson” and for it to be effective the government “should establish an entity which is independent, well-resourced, and has the power to conduct fact-finding, and enforce its orders, in line with other similar institutions in Canada.”

The model suggested by the CNCA recommends that an ombudsperson be charged with investigating allegations of human rights abuse or environmental damage — and form an opinion on whether companies are causing or contributing to harm. Further, the ombudsperson would make public recommendations of actions that could be taken by companies or the Canadian government to stop abuses, provide remedy to victims or prevent future harm.

In 2015, the federal Liberal Party, New Democratic Party, Green Party and Bloc Quebecois each committed to creating a human rights ombudsperson for the extractive sector, adding even more weight to a call made by a national roundtable of industry and civil society leaders that called on the Canadian government a decade to create such an office.

It appears some headway has been made. The federal government is apparently “seriously reviewing” the creation of an ombudsperson to investigate Canadian companies implicated in wrongdoing abroad, according Canada’s corporate social responsibility counsellor (CSR) for the extractive sector, Jeffrey Davidson.

There is no doubt that an ombudsperson with the powers suggested by the UN panel would have much more authority than that of the existing corporate social responsibility counsellor. In 2009 Ottawa tried to encourage the Canadian extractive sector to change the way they did business in the developing world by introducing a Corporate Social Responsibility Strategy. It was updated in 2014 to redefine the role of the Office of the Extractive Sector CSR counsellor, introduced international best practices extractive companies should adopt and linked Canada’s economic diplomacy assistance in foreign jurisdictions to a company’s adherence to the policy.

But the UN Panel seems to suggest that the CSR Counsellor perform a different role than is now the case. At present the CSR Counsellor advises extractive companies on the implementation of CSR standards, reviews the CSR practices of Canadian extractive companies operating abroad, and assists companies and stakeholders affected by projects that are outside of Canada with dispute resolution.

“We recommend that the Counsellor should primarily focus on raising awareness, advising and building capacity around business respect for human rights in all sectors, including the extractive sector,” said the UN panel.

The UN Panel also recommends making the so-called National Contact Point (NCP) more independent to address concerns about a perceived conflict of interest between promoting trade objectives and human rights goals. The NCP is an interdepartmental committee chaired by Global Affairs Canada that promotes awareness of the OECD Guidelines for Multinational Enterprises. Global Affairs Canada manages the country’s diplomatic and consular relations and promotes international development and humanitarian assistance.

The UN panel also recommends that federal and provincial governments take measures to remove “well-known barriers” to access judicial remedies.

“We found evidence of the victims of human rights abuses continuing to struggle in seeking adequate and timely remedies against Canadian businesses,” noted the UN panel. “Promoting respect for human rights, both at home and abroad, is a core component of Canadian values. However, rights without effective remedies do not mean much in practice.”

That is a stinging rebuke, and should propel federal and provincial governments to take “significant” action on corporate accountability, said Dwyer.

“We are calling for a human rights-based foreign and international development policy,” said Dwyer. “You can’t be successful in those aims without addressing what is arguably the largest scourge to Canada’s reputation and Canada’s human rights’ impacts around the world which is the Canadian extractive sector.”

This is part three of a three-part series.

Part one: UN Working Group calls on Canada to do more to address human rights abroad

Part two: Federal and provincial governments need to demonstrate “stronger engagement” towards duty to consult, says UN panel

Damages awarded to the mother of a child who was the victim of discrimination

The mother of a child who was the victim of discrimination based on a handicap was awarded $7,500 in moral damages by the Quebec Court of Appeal in a ruling that reaffirms and advances the rights of parents, according to educational and human rights lawyers.

In a closely-watched ruling by the province’s educational sector, the Montreal School Commission was also ordered to pay an equal amount in moral damages to the child, who is afflicted with Down syndrome, after the appeal court found that it discriminated against him when it failed to implement necessary accommodations to teach him in the first two years of high school.

However the appeal court also found that the school commission did not act in a discriminatory manner when it decided that it would be in the best interests of the child, given his special needs, if he pursued his studies in a specialized school rather than a regular school. “It appeared that, from an educational standpoint, the difference between X and his classmates was too great and prevented (him) from truly integrating or socializing,” remarked the appeal court in a 22-page decision in Commission des droits de la personne et des droits de la jeunesse c. Commission scolaire de Montréal 2017 QCCA 286.

“This is an important decision because a trend has emerged where the courts refused to grant damages to parents in similar cases,” said Lysiane Clément-Major, a Montreal lawyer with the Quebec Human Rights Commission. “There have been several decisions that refused to grant damages to parents because the courts held that it was not the parents who were the victim of discrimination. This ruling is very important for the Commission because it establishes the rights of parents.”

In a decision that partly overturned a decision by the Quebec Human Rights Tribunal, the appeal court found that the parents of children who are victims of discrimination based on a handicap can claim compensation for themselves. Heeding guidance by the Supreme Court of Canada in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, the appeal court noted that while Quebec civil law does not permit compensation for indirect damage, it does allow for damages to be awarded to indirect victims. As the SCC points out, an indirect victim is someone who suffers an autonomous injury after the commission of a fault, where the damage suffered was the logical, direct and immediate result of the fault. In this case, the harm suffered by the mother arose from the from the discriminatory treatment inflicted upon her son, found the appeal court. Her despondency, stress, worry and feeling of powerlessness surfaced when her son could not assert his rights personally, and therefore it fell upon her to represent and defend the interests of her son against the school commission, added the appeal court.

“With children suffering from an intellectual deficiency that prevents them from protecting their own rights, parents are, in some respects, a way to palliate this handicap, and can be considered as the victims of the discriminatory treatment endured by their child,” said the appeal court.

But warns Bernard Jacob, a lawyer with Morency Avocats who plead the case for the Montreal School Commission, the decision does not necessarily mean that the parents of a child who suffered discrimination will themselves always be granted damages. “It’s far from automatic,” said Jacob, an expert in education law. “The ruling states that there must be evidence that the parents themselves suffered harm – that’s what’s important.”

The unanimous ruling has even wider implications for the educational sector in Quebec. The Quebec appeal court once again rejected the notion that schools face a peremptory norm that compels them to integrate and accommodate handicapped children into the mainstream school system. And just as importantly, it reaffirmed that it falls upon the Quebec Human Rights Commission to prove that a school commission did not respect the interests of a handicapped child.

“The Quebec appeal court seized the opportunity to clarify the issue of burden of proof which is how the Quebec Human Rights Commission more or less insidiously sought to reintroduce the notion that there should be a peremptory or quasi-peremptory norm that presumes discrimination has occurred unless the (handicapped) child is in the mainstream school system,” noted Montreal lawyer Yann Bernard with Langlois Avocats who represents school boards.

The Quebec Human Rights Commission argued that the Quebec Human Rights Tribunal erred by imposing on it the burden of proving that the school commission did not act in the interests of a handicapped child. It further argued that two previous rulings issued by the appeal court contradict each other, with one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2006 QCCA 82) maintaining that integrating a child is not a peremptory norm while a more recent one (Commission scolaire des Phares c. Commission des droits de la personne et des droits de la jeunesse 2012 QCCA 988) asserting that integration is a goal that school commissions should prioritize.

The Quebec appeal court rejected the arguments, pointing out that the Tribunal “reconciled” both Quebec previous appeal court rulings, both of which followed guidance issued by the SCC in Eaton v. Brant County Board of Education, [1997] 1 SCR 241. In Eaton, the SCC held that while integration should be recognized as the norm of general application because of the benefits it generally provides, a presumption in favour of integrated schooling would work to the disadvantage of pupils who require special education in order to achieve equality.

The Tribunal therefore correctly held that the interests of the child outweigh the presumption of general application, said the appeal court. It follows then that a school commission must evaluate the strengths and weaknesses of the student as well as assess the advantages the student may acquire from attending regular class. When the school commission concludes that integration into a regular school setting may prove to be beneficial to the student, it must integrate the child by implementing necessary accommodations, so long as those accommodations do not represent an undue burden to the school commission. The Tribunal also correctly found that it is up to the Quebec Human Rights Commission to prove, based on the balance of probabilities, that the school commission acted in a discriminatory fashion when it decides not to integrate a child into mainstream schooling.

“The fundamental objective behind this exercise is the interest of the child,” said Jacob. “The Quebec Human Rights Commission sought to force school commissions to prove that specialized schooling was in the best interest of the student. We argued that it was up to the Commission to demonstrate that regular classes with necessary accommodations was in the best interests of the student. So in terms of burden of proof, this is an important decision.”

The Quebec Human Rights Commission is considering filing an application for leave to appeal before the SCC. It maintains that it should be up to school commissions to prove that the decision that they made regarding the kind of schooling that a handicapped student receives is in the best interests of the child. “They made the decision, and they have all of the information when they evaluated the child,” said Clément-Major.

This story was originally published in The Lawyers Weekly.

Quebec Human Rights Tribunal awards damages to employee fired because of her health condition

A retirement home has been ordered by the Quebec Human Rights Tribunal to pay more than $11,000 in material, moral and punitive damages to an employee who was fired because of her health condition.

The “important” decision reaffirms the wide reach of article 18.1 of the Quebec Charter of human rights and freedoms, which circumscribes information-gathering at the pre-hiring stage, highlights the importance for employers to have thorough pre-employment medical questionnaires that do not breach the Charter, and underscores the need for employers to take immediate action when employees demonstrate bad faith, according to employment and human rights lawyers.

“The decision underlines the importance of employers to improve their pre-employment medical questionnaires to ensure that pertinent questions are asked in order to discover functional work limitations,” said Serge Bouchard, an employment lawyer with Morency Société d’Avocats.

The case dates back to March 2011 when Michelle Paquette was hired as a patient care attendant by Résidence Ste-Anne in Quebec City. Paquette has multiple sclerosis (MS), an incurable and unpredictable degenerative disease that affects a person’s central nervous system, and she suffers from periodic attacks once or twice a year that lead to fatigue and numbness of the hands or feet. At the time of the job interview, Paquette, an experienced patient care attendant, did not have medical restrictions imposed on her by her doctor and therefore she did not reveal that she suffered from MS.

But two weeks after being hired, Paquette suffered an MS attack and was told by her neurologist that she should take off three weeks off. She did not. Instead she took a couple of days off, and asked her employer to relieve of her duty to serve soups or hot drinks to residents because her left hand was numb. Her employer in return asked for a medical certificate that confirmed that she could accomplish the duties she was hired to do. In the meantime, Paquette went to see her neurologist again, who gave her a medical certificate and reiterated that she should take a three-week sick leave. When Paquette went to pick up her pay cheque on April 7, less than a month after she was hired, she was fired.

In the dismissal letter, the employer stated she was fired because of her frequent absences due “to her health condition.” But before the Tribunal, the employer said that the hastily drafted dismissal letter did not “reflect the true reasons” behind the dismissal. Alexandre Caron, the employer, testified Paquette was fired because she did not divulge at the time she was hired that she had MS, which “irremediably led to a breach of trust that is necessary in an employer-employee relationship.” The employer added that healthy employees were an “occupational requirement” for his business and that accommodating Paquette would have caused undue hardship.

“We were above all concerned about the security of the residents,” said Alexandre Lacasse, a Montreal lawyer with Dufresne Hébert Comeau Avocats, who plead the case. “There are two patient care attendants, one on each floor, and if something happens they are on the front line to take care of them. If residents fall, you need to pick them up with both hands or if they have a cardiac arrest you have to carry out a cardiac massage with two hands so it is essential that employees be able to work with both hands.”

The Quebec Human Rights Tribunal dismissed the employer’s contentions. The dismissal letter constituted sufficient evidence to conclude that Paquette was discriminated against because of her illness, said the Tribunal in an 18-page ruling in Commission des droits de la personne et des droits de la jeunesse (Paquette) c. 9208-8467 Québec inc. (Résidence Sainte-Anne), 2016 QCTDP 20. The onus therefore shifted to the employer to justify its discriminatory conduct – and it failed to prove its case. The tribunal held that since Paquette did not have any medical restrictions, her decision to conceal her illness in the absence of a “precise question” during the job interview was “justified.”

Under the Quebec Charter employers are entitled to ask questions that will help them to assess an applicant’s ability to perform the duties of the job and to make an informed decision. However, article 18.1 of the Charter prohibits employers from seeking information about one’s colour, race, sex, pregnancy, sexual orientation, disability or the use of any means to mitigate the effects of one’s disability, pointed out Louis-Philippe Lampron, a human rights law professor at the Université Laval. On the face of it therefore any questions about the health of an applicant is considered to be discriminatory. But article 18.1 does allow employers to ask applicants questions on their health if a medical condition can prevent the person from fulfilling the responsibilities of the job, added Lampron. “The reason why the Tribunal ruled in favour of the complainant is because the evidence seemed to demonstrate that in spite of her illness, even taking into account the numbness in her hand, she was able to perform the most important, or nearly, all of the responsibilities for which she was hired,” said Lampron.

The Tribunal appears to be adding an additional burden on employers to ask precise questions during a job interview, noted Montreal labour and employment lawyer Zeïneb Mellouli of Lavery, de Billy. While it’s true that that on the day of the interview Paquette did not have an MS attack, “nuances” should have been made given that MS is a degenerative illness where functional limitations may be temporary and variable, added Mellouli. “While it’s true that an employer should not be seeking to hire employees in perfect health, it remains that they have a right to know if there are restrictions,  in the face of a degenerative disease, so long as there is a rational connection to the duties they must fulfil,” said Mellouili.

Bouchard takes it a step further. He believes that there is a case to be made that since Paquette suffered recurrent attacks once or twice a year that she indeed had medical restrictions that impeded her from fulfilling her responsibilities, and therefore she should have told her employer during the job interview that she was afflicted with MS.

The Tribunal also dismissed the employer’s arguments that Paquette did not act in good faith by failing to disclose her illness during the job interview. If the employer had felt that Paquette gave false or incomplete answers during the job interview and that it lead to a breach of trust in the employer-employee relationship, he should have dismissed her immediately, said the Tribunal. But by allowing her to continue to work, the employer ratified the contract, even if he demanded that she provide a medical certificate proving that she was capable of fulfilling her responsibilities as a patient care attendant, added the Tribunal.

The lesson is clear, said Bouchard. “Employers have to act immediately and not rest on their laurels if they are certain they were deceived,” said Bouchard. “They must terminate the employment contract.” But Lampron believes the matter is far from being clear-cut. If the deceitful reply was in response to a question that may be deemed to be discriminatory under the Quebec Charter, then an employer may have no grounds to fire an employee, said Lampron.

According to Maurice Drapeau, a lawyer with the Quebec human rights commission, the Paquette case is important because it is one of the rare cases that dealt with a dismissal based on a disability. Most complaints the Quebec human rights commission deals with are cases dealing with discrimination at the pre-employment phase of recruiting, said Drapeau. “People may have health problems but that does not mean they are unable to fulfil their job responsibilities,” said Drapeau. “The problem we come across very frequently is that employers are looking for employees in perfect health, in part because of insurance costs. So this is a very important ruling for people with disabilities.”

This story was originally published in The Lawyers Weekly.