2014 CACE (MB) Human Rights Update

By Shereese Qually on 2015/06/10

Manitoba Shereese Qually (Taylor McCaffrey LLP)

  1. LEGISLATION / RULES

(a)        Human rights statute In Manitoba, The Human Rights Code,[1] (the “Code”) is the statute governing human rights. An electronic version of the legislation is available at: http://www.canlii.org.

  • Discrimination in the Workplace

The Code defines discrimination at section 9(1) as: (a) differential treatment of an individual on the basis of the individual’s actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit;[2] or (b) differential treatment of an individual or group on the basis of any characteristic referred to in subsection (2); or (c)  differential treatment of an individual or group on the basis of the individual’s or group’s actual or presumed association with another individual or group whose identity or membership is determined by any characteristic referred to in subsection (2); or (d)  failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2). Section 9(2) then identifies the protected characteristics as ancestry, including colour and perceived race; nationality or national origin; ethnic background or origin; religion or creed, or religious belief, religious association or religious activity; age; sex, including sex-determined characteristics or circumstances, such as pregnancy, the possibility of pregnancy, or circumstances related to pregnancy; gender identity; sexual orientation; marital or family status; source of income; political belief, political association or political activity; physical or mental disability or related characteristics or circumstances, including reliance on a service animal, a wheelchair, or any other remedial appliance or device; social disadvantage.[3] Specifically referencing employment, the Code provides that: “No person shall discriminate with respect to any aspect of an employment or occupation, unless the discrimination is based upon bona fide and reasonable requirements or qualifications for the employment or occupation” (section 14(1)). “Any aspect” includes the following:

  • the opportunity to participate or continue to participate, in the employment or occupation;
  • the customs, practices and conditions of the employment or occupation; training, advancement or promotion;
  • seniority;
  • any form of remuneration or other compensation received directly or indirectly in respect of the employment or occupation, including salary, commissions, vacation pay, termination wages, bonuses, reasonable value for board, rent, housing and lodging, payments in kind, and employer contributions to pension funds or plans, long-term disability plans and health insurance plans; and
  • any other benefit, term or condition of the employment or occupation (section 14(2)).

In addition, the Code prohibits systemic discrimination, which arises where “interrelated actions, policies or procedures of a person that do not have a discriminatory effect when considered individually can constitute discrimination…if the combined operation of those actions, policies or procedures results in discrimination…” (section 9(3)).[4] The Code provides that for the purposes of various section, including section 14 (applicable to employment), there is a right to discriminate where bona fide and reasonable cause exists.  However, this right does not extend to the failure to make reasonable accommodation.[5] The prohibition against discrimination also applies to the hiring process as well including advertisement and pre-employment inquiries (sections 14(3) and (4)).

  • Harassment in the Workplace

In addition, the Code prohibits harassment, including in the workplace, prohibiting anyone responsible for an activity or undertaking to which the Code applies (which includes employment) from (a) harassing any person participating in the activity or undertaking or (b) knowingly permitting, or failing to take reasonable steps to terminate, harassment of one person who is participating in the activity or undertaking by another person who is participating in the activity or undertaking.[6] “Harassment” is then defined at section 19(2) as: (a) a course of abusive and unwelcome conduct or comment undertaken or made on the basis of any protected characteristic; or (b)  a series of objectionable and unwelcome sexual solicitations or advances; or (c) a sexual solicitation or advance made by a person who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance, if the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or (d) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance.

  • Reprisals

The Code provides a specific prohibition on reprisal stating that: “No person shall deny or threaten to deny any benefit, or cause or threaten to cause any detriment, to any other person on the ground that the other person: (a) has filed or may file a complaint under this Code; or (b) has laid or may lay an information under this Code; or (c) has made or may make a disclosure concerning a possible contravention of this Code; or (d) has testified or may testify in a proceeding under this Code; or (e) has participated or may participate in any other way in a proceeding under this Code; or (f)has complied with, or may comply with, an obligation imposed by this Code; or (g) has refused or may refuse to contravene this Code. (section 20)

(b)       Procedural rules The Manitoba Human Rights Commission (the “Commission”) is the administrative body with authority to consider applications alleging breaches of the Code. Helpful tips on how to file a complaint or response and the process that can be expected is found on the Commission’s website at http://www.manitobahumanrights.ca. The Commission consists of 10 members appointed by the Lieutenant Governor, with one member being appointed the chairperson (section 2). What follows is a summary of the general procedural rules and process one can expect when filing a complaint before the Commission.

  • Filing Complaint

While any person may file a complaint alleging a violation under the Code, the executive director may refuse the complaint where the alleged victim does not consent to the complaint (sections 22(1) and (2)).  In addition, the Commission may commence a complaint where the Commission or the executive director believes on reasonable grounds that a person has contravened the Code (section 22(3)).

  • General Process

A helpful overview of the expected process is found on the Commission’s website (http://www.manitobahumanrights.ca) and is as follows:

  • A complaint is filed with an intake officer;
  • There may be pre-complaint mediation;
  • Intake staff contact the complainant and finalize the complaint;
  • The complaint is served by the Commission on the Respondent(s);
  • The Commission reviews the complaint and may take steps including: preliminary assessment, pre-investigation mediation and/or investigation;
  • The Respondent is provided a deadline to file a response;
  • The response is filed and served on the Complainant, who is given an opportunity to file a reply;
  • An investigator is assigned and an investigation, including interviews with relevant persons, is undertaken;
  • An Investigation Assessment Report is prepared for consideration by the Board of Commissioners;
  • Copies of the Investigation Assessment Report are provided to the Complainant and Respondent who are given an opportunity to respond in writing before the Board of Commissioners considers the matter;
  • The Board of Commissioners considers the Investigation Assessment Report, any written submissions from the parties, and other relevant materials regarding the complaint.  Where there is insufficient evidence to support a complaint, or no contravention of The Human Rights Code, or the Board is satisfied the complaint frivolous or vexatious, the Board will dismiss it.  Once a case has been dismissed it does not go any further;
  • Where the Board finds that the complaint should not be dismissed, it may provide the parties with the opportunity to discuss settlement (Board directed settlement negotiations) and/or request that an adjudicator be appointed by the Chief Adjudicator from a selected list as outlined in The Human Rights Code;
  • The parties are notified in writing of the Board’s decision;
  • If referred to adjudication, the Chief Adjudicator will select an independent adjudicator from a list of those appointed under The Human Rights Code.  A public hearing will be scheduled and held;
  • The adjudicator makes a ruling in a written decision. The adjudicator may dismiss the complaint or may order a remedy; and
  • The adjudicators’ decisions are subject to judicial review by the courts if grounds for review exist.
  • Mediation and Conciliation

The Code provides that the Commission may pursue settlement of the complaint by conciliation or mediation at any point in the complaint process (section 24.1(1)). However, it is routinely pursued upon filing a complaint (and before a reply is filed) and when the Board has determined the complaint ought not be dismissed after the Investigation Assessment Report is completed.

  • Failure to Accept a Reasonable Settlement

A significant procedural power of the Commission is the right to terminate a complaint where the Commission deems that an offer made is “reasonable”.  This power may only be exercised before an adjudicator is appointed (section 24.1(4)).  The obvious result of this provision is that a party may have a complaint with considerable merit, but where a respondent has made a “reasonable” settlement offer, the complaint will not proceed to adjudication.  As a result, a complainant does not have the right under the Code to pursue his or her preferred or ideal remedy. As a result of the mediation, enforcement of reasonable settlement and investigation assessment report process (set out below), very few complaints proceed to adjudication in Manitoba.

  • Investigation Assessment Process

After the complaint and response (and any reply) have been filed, and initial mediation canvassed, the complaint is then referred to an investigator who undertakes a preliminary investigation of the complaint, meets with any relevant witness/party, reviews any relevant documents and ultimately writes a report analyzing the complaint and making a recommendation as to whether the complaint discloses a potential violation of the Code. In order to assist with the investigation, the executive director (or more commonly the investigator acting on authority of the executive director) may access land, commercial or residential properties and/or inspect any document which he or she believes on reasonable and probable grounds may assist with the investigation (section 27(1)). Upon completion of the Investigation Assessment Report, the complainant and respondent are entitled to notice of the report and are provided the opportunity to respond to the findings (section 28).

  • Consideration of the Investigation Assessment Report

A panel of three or more of the Commission members will then consider the Investigation Assessment Report and any reply thereto (section 28.1).  The Commission is required to dismiss a complaint if it is satisfied that (a) the complaint is frivolous or vexatious; or (b) the acts or omissions described in the complaint do not contravene this Code; or (c) the evidence in support of the complaint is insufficient to substantiate the alleged contravention of this Code. (section 29). If the complaint is not settled, terminated or dismissed and the Commission is satisfied additional proceedings would further the objectives of the Code or assist the Commission in discharging its responsibilities under the Code, the Commission shall: (a) request the chief adjudicator to designate a member of the adjudication panel to adjudicate the complaint; or (b) recommend that the minister commence a prosecution for an alleged contravention of the Code. (section 29(3)). The complainant and respondent will receive notice of the Commission’s determination (section 30).

  • Adjudication Process

Where a request for adjudication is made, the Chief Adjudicator will designate a member of the adjudication panel to hold a hearing into the complaint (section 32(1)).  The Chief Adjudicator is required to maintain a current list of members of the adjudication panel and shall designate members in sequence as their names appear on the list (section 32(2)). The parties to an adjudication under the Code are: (a) the Commission, which shall have carriage of the complaint; (b)  the complainant; (c) any person, other than the complainant, named in the complaint and alleged to have been dealt with in contravention of this Code; (d) the respondent; and (e) any other person added as a party under the provisions of the Code (section 34) It is of significance to note that counsel for the Commission will have carriage of the complaint going forward and is almost always counsel for the complainant as well.  It is rare for a complainant to have his or her own counsel apart from Commission counsel at the adjudication.

  • Failure to Accept a Reasonable Offer after an Adjudicator Appointed

Once an adjudicator has been appointed, he or she has the same power as the Commission has earlier in the process to determine that an offer that has been made is reasonable and may terminate the adjudication (section 37.1).[7]

  1. THE MANITOBA HUMAN RIGHTS COMMISSION

(a)        Contact information

Winnipeg: 700-175 Hargrave Street Winnipeg, MB R3C 3R8 Phone: 204-945-3007 Fax: 204-945-1292
Brandon: 341-340 Ninth Street Brandon, MB R7A 6C2 Phone: 204-726-6261 Fax: 204-726-6035
The Pas: 2nd Floor – Otineka Mall P.O. Box 2550 The Pas, MB R9A 1M4 Phone: 204-627-8270 Fax: 204-623-5404
TOLL FREE: 1-888-884-8681 TTY: 1-888-897-2811

(b)       Website link www.manitobahumanrights.ca Email: hrc@gov.mb.ca

  1. EMPLOYMENT-RELATED DISCRIMINATION

(a)        General exemptions An employer will not be liable for discrimination under the Code if it can establish that the alleged discriminatory act, policy or standard was a bona fide occupational requirement (sections 12 and 9(1)(d)). A qualification will not be a reasonable and bona fide occupational requirement unless the circumstances of the applicant cannot be accommodated without undue hardship. The Supreme Court of Canada established the following test for bona fide occupational requirement:

  • that the employer adopted the standard for a purpose rationally connected to the performance of the job;
  • that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
  • that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.[8]
  • In addition, section 11 confirms that it is not discrimination nor a contravention of the Code for an employer or other person:(a) to make reasonable accommodation for the special needs of an individual or group, if those special needs are based upon any protected characteristic; or (b) to plan, advertise, adopt or implement an affirmative action program or other special program that (i) has as its object the amelioration of conditions of disadvantaged individuals or groups, including those who are disadvantaged because of any protected characteristic, and (ii) achieves or is reasonably likely to achieve that object.

(b)       Discrimination in employment and prospective employment Section 14 of the Code prohibits discrimination in employment: 14(1) No person shall discriminate with respect to any aspect of an employment or occupation, unless the discrimination is based upon bona fide and reasonable requirements or qualifications for the employment or occupation. Section 19 of the Code prohibits harassment in various circumstances including in employment: 19(1) No person who is responsible for an activity or undertaking to which this Code applies shall (a) harass any person who is participating in the activity or undertaking; or (b) knowingly permit, or fail to take reasonable steps to terminate, harassment of one person who is participating in the activity or undertaking by another person who is participating in the activity or undertaking.

  • Prohibited grounds

The prohibited grounds of discrimination and harassment in employment are ancestry, including colour and perceived race; nationality or national origin; ethnic background or origin; religion or creed, or religious belief, religious association or religious activity; age; sex, including sex-determined characteristics or circumstances, such as pregnancy, the possibility of pregnancy, or circumstances related to pregnancy; gender identity; sexual orientation; marital or family status; source of income; political belief, political association or political activity; physical or mental disability or related characteristics or circumstances, including reliance on a service animal, a wheelchair, or any other remedial appliance or device; social disadvantage.[9] The following grounds are defined in section 1 of the Code: “social disadvantage” means diminished social standing or social regard due to (a) homelessness or inadequate housing; (b) low levels of education; (c) chronic low income; or (d) chronic unemployment or underemployment.

  • Exceptions

As stated above, an employer will not be liable for discrimination in employment if it can demonstrate that the impugned policy, act or standard was a bona fide occupational requirement. There are various exceptions to this requirement at section 14 of the Code as follows:

  • Where employing a person for personal service in a private residence (defined as “work of a domestic, custodial, companionship, personal care, child care, or educational nature, or other work within the residence that involves frequent contact or communication with persons who live in the residence”) it is a bona fide and reasonable requirement for an employer to discriminate for the purposes of fostering and maintain a desired environment within the residence (sections 14(8) and (9));
  • Employment may also be limited based on the age of majority, either by limiting or classifying employment based on the age of majority in accordance with Manitoba legislation regulating employment or occupation of persons under the age of majority (section 14(10)).  In Manitoba, the applicable statue is The Employment Standards Code, C.C.S.M. c. E110;
  • A further exception permits for the lawful and reasonable disciplining of an employee who violates the duties, powers or privileges of the employment by improperly using the employment as a forum for promoting beliefs or values based on a protected characteristic (section 14(11)).

(c)        Discrimination in wages Section 14(12) specifically indicates examples of inappropriate employment-related discrimination including reduction of wage levels or diminishing any other benefit available to any person in his or her employment (section 14(12)(b)). Manitoba also addresses gender-based discrimination in compensation in The Pay Equity Act, C.C.S.M. c. P13 and section 82 of The Employment Standards Code, C.C.S.M. c. E110.  

(d)       Employment applications, advertisements and agencies Section 14(3) – (5) of the Code provides that it is discriminatory for employment applications, advertising, pre-employment inquiries or employment agencies to directly or indirectly classify or indicate qualifications based on a prohibited characteristic as follows: 14(3) No person shall publish, broadcast, circulate or display, or cause to be published, broadcast, circulated or displayed, any statement, symbol or other representation, written or oral, that indicates directly or indirectly that any characteristic referred to in subsection 9(2) is or may be a limitation, specification or preference for an employment or occupation, unless the limitation, specification or preference is based upon bona fide and reasonable requirements or qualifications for the employment or occupation. 14(4) No person shall use or circulate any application form for an employment or occupation, or direct any written or oral inquiry to an applicant for an employment or occupation, that (a) expresses directly or indirectly a limitation, specification or preference as to any characteristic referred to in subsection 9(2); or (b) requires the applicant to furnish information concerning any characteristic referred to in subsection 9(2); unless the limitation, specification or preference or the requirement to furnish the information is based upon bona fide and reasonable requirements or qualifications for the employment or occupation. 14(5) No person who undertakes, with or without compensation, to (a) obtain any other person for an employment or occupation with a third person; or (b) obtain an employment or occupation for any other person; or (c) test, train or evaluate any other person for an employment or occupation; or (d) refer or recommend any other person for an employment or occupation; or (e) refer or recommend any other person for testing, training or evaluation for an employment or occupation; shall discriminate when doing so, unless the discrimination is based upon bona fide and reasonable requirements or qualifications for the employment or occupation.

  • Prohibited grounds

The prohibited grounds are as set out above.

  • Exceptions

There are no special exceptions to this provision. The general exceptions outlined above would apply.

(e)        Unions and employee associations Section 14(6) of the Code provides for equal treatment with respect to unions, occupational associations, employers’ organizations and professional associations: 14(6) No trade union, employer, employers’ organization, occupational association, professional association or trade association, and no member of any such union, organization or association, shall (a) discriminate in respect of the right to membership or any other aspect of membership in the union, organization or association; or (b) negotiate on behalf of any other person in respect of, or agree on behalf of any other person to, an agreement that discriminates; unless bona fide and reasonable cause exists for the discrimination.

  • Prohibited grounds

The prohibited grounds are set out immediately above.

  • Exceptions

There are no special exceptions to this provision. The general exceptions outlined above would apply.

  1. KEY DEFINITIONS / CONCEPTS

(a)        Employee Employees may allege discrimination or harassment contrary to the Code with respect to provincially regulated employment.   However, “employee”  is not defined in the Code. In particular, it is unclear if an independent contracting relationship may be included in the broad definitions under the Code.  The Code states:

Discrimination in employment 14(1) No person shall discriminate with respect to any aspect of an employment or occupation, unless the discrimination is based upon bona fide and reasonable requirements or qualifications for the employment or occupation.

“Employment or occupation” is then defined as:

14(13) In this section, “employment or occupation” includes (a) work that is actual or potential, full-time or part-time, permanent, seasonal or casual, and paid or unpaid; and (b) work performed for another person under a contract either with the worker or with another person respecting the worker’s services. Adjudicators have acknowledged that courts have repeatedly emphasized that human rights legislation must be given a liberal interpretation which recognizes the special nature of the legislation and advances the broad policy considerations underlying it. Interpreting the term “employee” in this context provides for a broader scope as to who is included in that definition.[10]

It is unclear how adjudicators will interpret the definitions above with respect to independent contractors noting that the above-noted employment-related definitions are unique to Manitoba and broader than those provided for in other provinces.

(b)       Employer Employees may allege discrimination or harassment against any “person” who discriminates in employment pursuant to the Code. Although “employer” is not defined in the Code, “person” is defined as including:

  • The definition under The Interpretation Act, C.C.S.M. c. 180 which includes a corporation and the heirs, executors, administrators or other legal representatives of a person; and in addition
  • an employment agency, employers’ organization, trade union, occupational association, professional association, trade association and any other group or class of persons; and a local authority (section 1 of the Code).

(c)        Disability “Disability” is one of the grounds upon which discrimination is prohibited with respect to employment. Disability is not defined under the Code outside of the general protected characteristic definition of: “physical or mental disability or related characteristics or circumstances, including reliance on a service animal, a wheelchair, or any other remedial appliance or device” (section 9(2)(l)). Disabilities covered by the Code have been found to include many physical and mental disabilities including: cancer,[11] Hepatitis C[12], osteoporosis[13], bipolar depression;[14] and significant medical impairment related to dental health[15]. Discriminatory actions in response to perceived disabilities are also prohibited by the Code. A perceived disability may be found to exist where the evidence does not necessarily or clearly establish the presence of a disability, but may be a “physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors”.[16]  For example, adjudicators have found discrimination based on perceived disability where individuals had alcohol dependence issues short of alcoholism.[17] However, it may be insufficient to self-diagnose certain disabilities, in particular addictions, without expert evidence confirming the addiction.[18]

  1. COMPLAINT INITIATION

(a)        Where does complaint go? As indicated above, the initial complaint goes to the Commission.

  • Role of Commission / Tribunal

As set out above, the role of the Commission is to undertake the investigation, mediation, conciliation and ultimately make a referral and request for the adjudication of a complaint.

(b)       Time limits for complaint A complaint must be filed within one year of the alleged contravention of the Code, or where a continuing contravention is alleged, within one year of the last alleged instance of the contravention (section 23(1)).  The executive director is empowered to extend the time for filing a complaint (except for a complaint which is commenced by the Commission under section 22(3) as referred to above).  The applicable test for such an extension is whether the extension would cause undue prejudice to the respondent (section 23(2)). There is a requirement in the Code that a complaint be served on the respondent within 30 days of filing, however failing to meet this time limit does not invalidate the complaint, and practically this timeline is often not met by the Commission (section 23(3)).

(c)        Form  and style of complaint

  • General 

The Commission provides various information regarding complaints and matters related to the a complaint, which is available on the Commission’s website at http://www.manitobahumanrights.ca.  Intake officers will provide required forms and assist in finalizing a complaint and reply, eliciting specific information from the complainant and respondent so as to assist the Commission in understanding and investigating the complaint.

  • Individual complaint

The Commission’s formal intake form is not available online.  The Commission prefers complainants to contact an intake officer directly so that the intake officer may discuss with a potential complainant whether or not there is in fact a potential violation of the Code warranting the filing of a complaint.  The intake officer will then send the required form to the complainant by mail, fax, or email. Similarly, there is no formal form for a reply or response.  Once required to provide a response, the respondent can provide a detailed response to the allegations by letter, brief or other similar format. Once the response has been filed, the applicant is given an opportunity to file a reply to the response. It should be noted that timelines provided by the Commission for filing the response and reply are variable, flexible and rarely enforced with much precision.

  • Representative / group complaint

The process of filing a representative or group complaint is the same as above.

(d)       Intake / review / screening process Before processing an application, the Commission’s intake officer will review the application and potential complaint.  If a proposed complaint is incomplete, or of questionable relevance to the Code, the intake officers will contact the complainant explaining how the complaint should be amended and will not process the complaint until it is complete. In addition, the intake officers will review each proposed complaint to ensure that the allegations are within the jurisdiction of the Commission (i.e., that the allegations relate to discrimination on a prohibited ground, that the application was filed within one year after the last incident to which the application relates, that the respondent is a provincially regulated employer or an employee or agent of a provincially regulated employer and that there is no concurrent civil proceeding based on the same facts and issues). If the Commission considers the application complete and has found no problems with its jurisdiction to consider the application, a copy of the application will be served on the respondent(s). The Commission will also conduct a review of any response or reply that is filed.

(e)        Mediation / settlement process The Code provides that the Commission may pursue settlement of the complaint, including by conciliation or mediation, at any point in the complaint (section 24.1(1)). However, it is routinely canvassed and pursued upon filing a complaint (and before a response is filed) and also when the Board has determined the complaint ought not be dismissed after the Investigation Assessment Report is completed. Note again that a significant procedural power of the Commission is the right to terminate a complaint where the Commission or Adjudicator deems that an offer made is reasonable (sections 24.1(4) and 37(1)) [19].  The obvious result of this provision is that a party may have a complaint with considerable merit, but where a respondent has made a “reasonable” settlement offer, the complaint will not proceed to adjudication.  As a result, a complainant does not have the right under the Code to pursue his or her preferred or ideal remedy. [20]

(f)        Typical timelines It is very difficult to set out a typical timeline before the Manitoba Human Rights Commission.  Due to various staffing and other issues, the complaint and investigation process has been taking an inordinate amount of time in recent years depending on the complexity of the complaint at issue.  This is a notoriously slow process, increasing in recent years in part because of limited resources and staff turnover.  As an example, a complaint filed in November 2010 completed the Investigation Assessment Report stage in May 2013, over two and a half years after filing the complaint.

  1. PRELIMINARY PROCEEDINGS

(a)        Application to dismiss all or part of a complaint Section 29(1) of the Code empowers the Commission to dismiss a complaint if it is satisfied that:

  • the complaint is frivolous or vexatious; or
  • the acts or omissions described in the complaint do not contravene this Code; or
  • the evidence in support of the complaint is insufficient to substantiate the alleged contravention of this Code.

There is no formal process for applying for consideration under this provision.  A respondent can write to the Commission at any time asking it to exercise its discretion under this provision.  Alternatively, the Commission may utilize this discretion in considering the recommendations of the Investigation Assessment Report.

(b)       Application to defer to another process There is no express provision in the Code which permits a Manitoba adjudicator to defer the hearing of a complaint pending the conclusion of a proceeding in another forum.  This issue was considered in Blatz v. 4L Communications Inc.[21] where the respondent requested that the hearing be deferred until the former employee’s wrongful dismissal action was concluded in the Queen’s Bench.  The adjudicator held that it was within the jurisdiction of the board of adjudication to defer the hearing providing that the resulting delay is not undue, pursuant to section 39(1) of the Code relying on the following factors:

  • Instant considerations, which relate to the specific proceedings that give rise to the motion to defer.
  • Institutional considerations, which form the general backdrop against which the motion is brought. At an institutional level, factors include an aim to ensure fairness, show respect for the participants, and promote integrity in the administration of justice.
  • Considerations of policy, which take into account the principles, intent, and purposes that underlie the legislative framework within which human rights proceedings generally unfold

The adjudicator held that exercising the discretion under section 39(1) involves balancing the three factors, with no one factor having greater weight than the others.  In applying this test, the adjudicator deferred the hearing no more than 18 months. More recently, in Dick v. Pepsi Bottling Group (Canada), Co.[22] the adjudicator considered the principles in British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal),[23] in relation to a human rights complaint where the same facts had been considered pursuant to a grievance procedure (and dismissed in that process). She noted that there is no language in the Manitoba Code similar to that in Figliola which permits the dismissal of a complaint which has been “appropriately dealt with”.  Rather, she resolved the issues in this case through the common law doctrines of issue estoppel and/or abuse of process.  As a result, the complaint was dismissed.  

(c)        Other applications

  • Request for adjournment

There are very few adjudication cases on any matter, including with respect to procedural issues.  However, recently, a decision was issued regarding a request for an adjournment of an adjudication made by the respondent due to mental health issues he was experiencing.[24]  In this case the key representative for the respondent sought the adjournment due to the anxiety and depression he had been suffering from with a supporting note from his psychiatrist.  The adjudicator considered the competing factors under the Code, including the obligation to convene and complete the hearing without delay (section 39(1)) and the right of every party to fully participate in the hearing and present evidence (section 39(4)).  The adjudicator granted the adjournment based on the conclusion that the prejudice to the respondent outweighed any prejudice experienced by the complainant due to the delay, noting that mental health issues are debilitating and need to be appropriately accommodated.

  1. PRE-HEARING PROCESS

(a)        Particulars The Complaint filed with The Manitoba Human Rights Commission is intended to set out the particulars of the alleged discrimination and/or harassment.  The Response is to set out the particulars of the respondent’s position and the Reply any relevant response to the Respondent’s position.

(b)       Documents As noted above, documentary production occurs at two stages in the complaint process, one during the investigation stage and then again if the matter reaches adjudication. In order to assist with the investigation, the executive director (or investigator acting on authority of the executive director) may access land, commercial or residential properties and/or inspect any document which it believes on reasonable and probable grounds may assist with the investigation (section 27(1)).  An ex parte order to enforce this right may be applied for (section 27(2)). The adjudicator may order any party to produce to any other party any document the party intends to rely on at a hearing and any other document the adjudicator deems relevant to the complaint (section 38(1)). In the decision of Kilbride v. A + Financial Services Ltd.,[25] the adjudicator applied the test identified by the British Columbia Human Rights Tribunal in Tannis v. Calvary Publishing Corp:[26]

  • justice is better served if the element of surprise is eliminated from the hearing process;
  • parties should be prepared to address all issues that may arise in the hearing and this requires that all parties be fully apprised of the case it is to meet and the evidence to be adduced;
  • only material relevant documents need be disclosed; that is, the process of document disclosure is not meant to be a “fishing expedition”, the documents requested must relate to the issues in the case;
  • the nature of the case and the rights at issue will assist the tribunal in determining the nature and breadth of document disclosure; and
  • fairness requires that procedural matters, such as pre-hearing disclosure, be dealt with in a manner that is “fair and conducive to an expeditious hearing of the matter”, disclosure should be completed with sufficient time available so that the parties can adequately prepare for the hearing.

In terms of relevance, the adjudicator applied the same test applied by the Court of Queen’s Bench in determining production of documents in a civil action: The test as to what documents are required to be produced is that of relevance. Relevance is normally measured by an examination of the issues raised in the pleadings. At the very least, for a document to be relevant, the party seeking production ought to be able to articulate a theory as to how that document might help its case or damage the case of the opposite party. While it has been said that the threshold for determining the question of relevance is a low one, the court should nevertheless not countenance fishing expeditions. If counsel cannot articulate a reasonable theory upon which the documents to be discovered are relevant, then the documents should not have to be produced. Litigants should not be deterred from prosecuting or defending an action by unnecessary discovery.[27] With reference to the “pleadings”, the complaint and response (and in this case there was no response), the adjudicator ordered the requested documents.

(c)        Witnesses Witnesses similarly become relevant at two stages of the process: first at the investigation stage and second at an adjudication if the complaint reaches this stage. During the investigation process, an investigator will contact any party or person whom he or she deems (or a party advises) may be relevant to the investigation.  The investigator generally holds a series of interviews collecting information from these witnesses which is later summarized in the Investigation Assessment Report.  Counsel may attend with any party or witness to this interview. If the matter reaches adjudication, witnesses may be called and subpoenaed by the various parties. Witnesses compelled to attend are entitled to attendance fees as are payable in court (section 39(7)).

(d)       Evidence The evidence and documents to be relied on are thoroughly analyzed at the investigation stage and set out in the Investigation Assessment Report. If the matter reaches adjudication, the adjudicator is empowered to determine the procedures at the hearing and receive such evidence or information he or she deems relevant and appropriate, whether or not it would be admissible in a court of law, unless it is subject to any type of legal privilege (section 39(2)). The Code provides that generally the onus of proof rests with the person alleging contravention of the Code, however a reverse onus lies with the respondent in proving: (a)  the existence of a bona fide and reasonable cause for discrimination; (b)  that a requirement or qualification for an employment or occupation is bona fide and reasonable; (c) that reasonable accommodation has been made or is not possible in the circumstances; or (d) the applicability of any other exception to the prohibitions enacted by the Code; (section 51(2)).

  1. HEARING

(a)        Format and hearing panel Where a request for adjudication is made, the Chief Adjudicator will designate a member of the adjudication panel to hold a hearing into the complaint (section 32(1)).  The Chief Adjudicator is required to maintain a current list of members of the adjudication panel and shall designate members in sequence as their names appear on the list (section 32(2)). The parties to an adjudication under the Code are: (a) the Commission, which shall have carriage of the complaint; (b) the complainant; (c) any person, other than the complainant, named in the complaint and alleged to have been dealt with in contravention of this Code; (d) the respondent; and (e) any other person added as a party under the provisions of the Code (section 34) It is of significance to note that counsel for the Commission will have carriage of the complaint going forward and is almost always counsel for the complainant as well.  It is rare for a complainant to have his or her own counsel apart from Commission counsel at the adjudication.

(b)       Location The hearing is generally heard in the regional centre in which the complaint is filed.  The Commission has offices in Winnipeg, Brandon and The Pas.

(c)        Attendance of public The hearing is generally open to the public, unless the adjudicator orders otherwise, and the adjudicator will place a public notice in at least one newspaper of the date, time, place and subject matter of the hearing at least three days before the hearing (sections 36(1) and 39(3)).

(d)       Formal record The hearing will be recorded by sound recording.  The recording and documents filed at the hearing will be available to a requesting party on conditions as determined by the adjudicator (section 39(5)).

(e)        Rules of evidence The adjudicator is empowered to determine the procedures at the hearing and receive such evidence or information he or she deems relevant and appropriate, whether or not it would be admissible in a court of law, unless it is subject to any type of legal privilege (section 39(2)).

(f)        Order of proceeding The complainant is generally expected to call his or her case first, with the respondent proceeding after the complainant’s evidence has concluded.  However, the adjudicator is empowered to determine the procedure at the hearing and how he or she wishes to receive evidence (section 39(2)).

(g)       Form of decision A decision of an adjudicator must be made in writing with a statement of the reasons for the decision.  The reasons shall be provided to the parties and be made available to the public.  The adjudicator may direct the Commission to delete any information disclosing the identity of a party or witness from the decision if the adjudicator believes that the  disclosure would cause undue prejudice or hardship to the party or witness (section 46).[28] Decisions are available on the Commissions website. If a decision is not rendered within 60 days of the hearing, the adjudicator must advise the chief adjudicator in writing as to the reasons for the delay and indicate when the decision will be rendered (section 41(1)).  The chief adjudicator may then fix a time within which the final decision must be rendered or revoke the designation of the adjudicator and designate a new adjudicator (sections 41(2) and (3)). Any party to the adjudication may file a certified copy of an order of an adjudicator with the Court, which order becomes enforceable as a judgment of the court (section 48(1)).  Where a party to an adjudication fails to comply with an order, the other party may apply to the court for an order requiring compliance (section 48(3)).

  1. Remedies

Where an adjudicator determines that a party has contravened the Code, the adjudicator may order the party to do one or more of the following: (a) do or refrain from doing anything in order to secure compliance with this Code, to rectify any circumstance caused by the contravention, or to make just amends for the contravention; (b) compensate any party adversely affected by the contravention for any financial losses sustained, expenses incurred or benefits lost by reason of the contravention, or for such portion of those losses, expenses or benefits as the adjudicator considers just and appropriate; (c)  pay any party adversely affected by the contravention damages in such amount as the adjudicator considers just and appropriate for injury to dignity, feelings or self-respect; (d) pay any party adversely affected by the contravention a penalty or exemplary damages in such amount, (subject to the maximum amounts noted below), as the adjudicator considers just and appropriate as punishment for any malice or recklessness involved in the contravention; (e) adopt and implement an affirmative action program or other special program, if the evidence at the hearing has disclosed that the party engaged in a pattern or practice of contravening this Code  (section 43(2)). General damages under the Code are rarely significant and often in the range of $2000-$5000.[29] Exemplary damages, if awarded, are rarely more than $1,000.[30] The amount of a penalty or exemplary damages shall not exceed the maximum fine to which a contravening party would be liable if there was a prosecution for contravention of the Code (section 43(3)).  Currently that amount is: not more than $5,000 in the case of an individual or $25,000 in any other case (section 51(1)). The adjudicator may, at any time and with the consent of the parties make an order that the parties agree to and thereafter the parties would be bound to the order (section 43(5)). Generally the parties to a hearing are responsible for their own costs.  However, where the adjudicator regards a complaint or reply as frivolous or vexatious, or is satisfied that the investigation or adjudication has been frivolously or vexatious prolonged by the conduct of any party, the adjudicator may order costs (section 45). There is also provision in the Code for interim relief including injunctions (sections 54 and 55).

(a)        Reinstatement An adjudicator has the jurisdiction to award reinstatement with full backpay, however, in practice, reinstatement is rarely ordered.  It is far more common for loss of wages to be the remedy provided.

(b)       Lost wages In terms of quantifying lost wages, adjudicators have been very inconsistent as to the basis for the remedies awarded.   Recent decisions specifically held that the appropriate measure for damages is not common law notice, but rather the focus should be on restoring wages only to compensate for the loss incurred as a result of the breach at issue.  The remedy is aimed at compensating the affected party for financial losses sustained by reason of the contravention of the Code. The purpose is to restore the affected party so far as is reasonably possible or appropriate to the position he or she would have been in if the discrimination had not occurred. [31] However, other awards[32] appear to be measured with reference to common law notice, or even statutory notice[33], with no explanation as to the quantum provided.

(c)        Other Orders Adjudicators appointed under the Code routinely awarded creative preventative and educational-based orders in order to attempt to mitigate the potential for further and continuing violations of the Code.  Examples include the following:

  • In the context of sexual harassment during an interview process, providing a preventative/protective order requiring the respondents to notify the Commission for five years of any hiring activity, including the names, addresses and phone numbers of all persons interviewed, the date of departure of any employees and entitlement to audit the records of the respondents with respect to employment practices;[34]
  • An order that the employer adopt and post a suitable accommodation policy acceptable to the Commission;[35]
  • Requirement that management attend at a workshop on reasonable accommodation at the Commission;[36]
  • Requirement that the employer attend a workshop on harassment in the workplace, provide future employees with a policy on harassment in the workplace, training for employees and make all employees aware of who was designated to receive complaints.[37]

(d)       Costs Generally the parties to a hearing are responsible for their own costs.  However, where the adjudicator regards a complaint or reply as frivolous or vexatious, or is satisfied that the investigation or adjudication has been frivolously or vexatious prolonged by the conduct of any party, the adjudicator may order costs (section 45).

(e)        Settlements and Releases Settlements are generally treated as confidential and are in the nature of without‑prejudice contracts, which the Commission does not intervene in enforcing. As noted above, a significant power of the Commission is the right to terminate a complaint where the Commission deems that an offer made is reasonable (section 24.1(4)).  Similarly, once an adjudicator has been appointed, he or she has the same power as the Commission has earlier in the process to determine that an offer that has been made is reasonable and may terminate the adjudication (section 37.1). The Code provides at section 24.1(3) that even if a complaint is discontinued as the result of a settlement if the Commission determines that either party to the settlement has failed to substantially comply with the settlement terms, re-open the proceedings and proceed as if no settlement had been reached.

  1. JUDICIAL REVIEW

Any party to an adjudication may apply to the court for a judicial review of any decision or order on the ground that (a) the adjudicator committed an error of jurisdiction with respect to the adjudication; or (b) there was a breach of the principle of natural justice or the principle of fairness in the course of the adjudication; or (c) there is an error of law on the face of the record of the proceedings in respect of which the decision or order under review was made (section 50(1)). The application for judicial review shall be made within 30 days of the decision or order in question, or within such further time as the court may allow (section 50(2)). The application for judicial review shall be served on the other parties to the adjudication and the adjudicator (section 50(3)). The Code’s privative clause provides that all adjudication decisions are final and binding (section 49).  As a result, the standard often applied in judicial review is reasonableness except in the cases of jurisdiction in which case the standard is correctness.[38]

  1. MOST COMMONLY CITED CASES

As previously noted, there are very few adjudication decisions in Manitoba.  Accordingly, it is difficult to state that any decision is “commonly cited”.  Labour arbitrators in the labour arbitration context routinely address and deal with human rights related principles in the workplace context.  The following are recent and relevant human rights decisions and principles applied in Manitoba:

(a)        Prima facie discrimination The classic statement of the test for prima facie discrimination in human rights matters was articulated by the Supreme Court of Canada in O’Malley v. Simpsons Sears Ltd.: “A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.”[39]  This test is routinely applied in the context of adjudications under the Code with the onus on the complainant to establish a prima facie case in order for the allegation of discrimination to be considered further.[40]

(b)       Duty to accommodate Human rights adjudicators and labour arbitrators in Manitoba regularly refer to the Supreme Court of Canada’s decisions on the duty to accommodate: Renaud v. Central Okanagan School District No. 23,[41] and British Columbia (Public Service Employee Relations Commission) v. BCGSEU,[42] establishing a three-part test for justifying a discriminatory workplace rule, the most significant part being whether the employee’s needs can be accommodated without undue hardship.[43]

(c)        Assessment of Credibility The decision of Faryna v. Chorny[44] has been applied by adjudicators and arbitrators (in the labour arbitration context) alike in order to assess credibility.[45]

(d)       Sex discrimination An adjudicator has found that limiting an employee’s ability to work on a certain job due to her gender and laying off only the female complainant during lay off time amounted to discrimination.[46]

(e)        Disability discrimination In order to establish that a policy or standard meets the bona fide occupational requirement, adjudicators have held that actions based on impressionistic and misinformed assumptions about the nature of a disability cannot be justified.  The standard is an objective one based on the best scientific evidence[47] (para. 67). Further, in dealing with employment-related sanctions, including termination, arbitrators and adjudicators have held that impermissible discrimination, and therefore a violation of the Code, arises where the presence of a disability is in any way (even a small part) a reason for the employer’s actions or decision.[48] Further, many arbitrators have had the opportunity to address the role the disciplinary process plays when dealing with misconduct which is at least in part due to a disability.  The hybrid approach is generally adopted by Manitoba arbitrators.[49]

(f)        Family status discrimination Labour arbitrators have had the opportunity to consider family status discrimination in a number of circumstances, particularly with respect to the provision of benefits under a collective agreement including: parental leave top-up for an adoptive parent,[50] and health and welfare benefits where families (as a result of divorce or separation) do not have full-time custody of their children.[51]  Another common issue is the right, following a family-related leave, to return to the same job as prior to the leave[52] and claims of discrimination due to family-related obligations.[53]

[1] Human Rights Code, C.C.S.M. c. H175 [2] Note that this is a unique provision which does not discrimination based on a protected characteristic.  Addressed in Siemens v. Manitoba (Attorney General), 2000 CarswellMan 479,  [2000] M.J. No. 417 (Man. Q.B.), affirmed 2000 CarswellMan 655 (Man. C.A.), affirmed 2002 CarswellMan 461 (S.C.C.), additional reasons 2002 CarswellMan 574 (S.C.C.). [3] Note that while “criminal record” is not explicitly a protected characteristic, the Human Rights Commission has a directive on its website indicating that criminal record is an analogous ground upon which a complaint of discrimination may be based.  This issue was also considered in Penner v. Fort Garry Services Inc., 2009 CarswellMan 641 (Man. Bd. of adjudication), however the employer did not contest that the presence of a criminal record could be a protected characteristic, and as a result the adjudicator simply accepted it to be so for the purposes of that adjudication. [4] Application of this concept in the arbitral decision of Manitoba v. Legal Aid Lawyers’ Assn., 2009 CarswellMan 372, [2009] M.G.A.D. No. 6 (Man. Arb.) [5] There are many decisions considering the bona fide standard.  See the interesting decision of Schroen v. Steinbach Bible College, 1999 CarswellMan 634, [1999] M.H.R.B.A.D. No. 2 (Man. Bd. of Adjudication) where being Mennonite (as opposed to Mormon) was held to be a bona fide occupational requirement working at a Mennonite bible college.   [6] Application and consideration of this provision is set out in Garland v. Tackaberry, Re, 2013 M.H.R.B.A.D. 5 (Man. Human Rights Comm.). [7] See Metaser and Jewish Community Campus of Winnipeg Inc., Re, 2013 M.H.R.B.A.D. 6 (Man. Human Rights Comm.) – where the adjudicator confirms that in order to assess the “reasonableness” of an offer the adjudicator must proceed on the basis that the allegations were proven.  The adjudicator also notes that nothing in 37.1 compels the respondent to actually make good on the offer once accepted under this section. [8] British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., (sub nom. British Columbia (Public Service Employee Relations Commission) v. BCGSEU) [1999] 3 SCR 3 (S.C.C.) [“BCGSEU”]. [9] Note that while “criminal record” is not explicitly a protected characteristic, the Human Rights Commission has a directive on its website indicating that criminal record is an analogous ground upon which a complaint of discrimination may be based.  This issue was also considered in Penner v. Fort Garry Services Inc., 2009 CarswellMan 641 (Man. Bd. of adjudication), however the employer did not contest that the presence of a criminal record could be a protected characteristic, and as a result the adjudicator simply accepted it to be so for the purposes of that adjudication. [10] Hiebert v. Martin-Liberty Realty Ltd., 2009 CarswellMan 619, [2009] M.H.R.B.A.D. No. 102 (Man. Bd. of Adjudication). [11] H. (L.) v. Vietnamese Non-Profit Housing Corp., 2007 CarswellMan 328, [2007] M.H.R.B.A.D. No. 1 (Man. Bd. of Adjudication) [12] A. v. Natural Progress Inc., 2005 CarswellMan 532, [2005] M.H.R.B.A.D. No. 2 (Man. Bd. of Adjudication) at para. 54. [13] Chestnut v. Theo c. Limited o/a/ Hampton Inn & Suites, supra [14] K.K. v. G.S., (c.o.b. Hair Passion), (January 31, 2013), Harrison, [2013] M.H.R.B.A.D. No. 102 (Man. Bd. of Adjudication). [15] Winpak Ltd. and CEP, Local 830 (Malic), Re, 2006 CarwellMan 893, [2006] M.G.A.D. No. 41 (Man. Arb.) [16] C.R. v. Canadian Mental Health Assn, 2013 MHRBAD 1, [2013] M.H.R.B.A.D. No. 101 (Man. Bd. of Adjudication) [17] C.R. v. Canadian Mental Health Assn., supra. [18] VALE v. USW, Local 6166 (Fudge), Re, 2013 CarwellMan 764, [2013] M.G.A.D. No. 11 (Man. Arb.) (Peltz). [19] It is important to note that the Queen’s Bench decision of Korsch v. Manitoba (Human Rights Commission), 2011 MBQB 222 (Man. Q.B.) confirmed that a reasonable offer can include an offer which is amended after the Commission’s suggestion as to what additional terms would render the offer reasonable.  The Manitoba Court of Appeal 2012 CarswellMan 667, [2012] M.J. No. 378 (Man. C.A.) dismissed the complainant’s appeal of the Queen’s Bench decision. [20] Mancusi v. 5811725 Manitoba Inc. o/a Grace Cafe City Hall (November 8, 2012) (Harrison) confirmed that the concept of reasonableness is different from appropriateness.  It is not necessary that an offer to settle mirror what an adjudicator would order.  The question is whether the offer is reasonable, in that the relief is offered “approximates” or is “the same or nearly the same” as the “relief sought by the complainant that would otherwise be obtained if the complaint went to hearing”, or the offer is equivalent to what the complainant could reasonably be expected to receive in a hearing (para. 58); Similarly in Metaser and Jewish Community Campus of Winnipeg Inc., Re, 2013 M.H.R.B.A.D. 6 (Man. Human Rights Comm.) it was held that in order to be reasonable, all the various heads of damages under section 43(2) ought to be considered. [21] (June 18, 2012), Dawson, [2012] M.H.R.B.A.D. No. 103 (Man. Bd. of Adjudication). [22] (April 7, 2014), [2014] M.H.R.B.A.D. No. 102, Harrison (Man. Human Rights Comm.). [23] (sub nom. British Columbia (Workers’ Compensatoin Board) v. Figliola)) 2011 SCC 52 (S.C.C.). [24] Kilbride v. A + Financial Services Ltd., 2012 M.H.R.B.A.D. 5, [2012] M.H.R.B.A.D. No. 105 (Man. Bd. of Adjudication); note final order at Kilbride v. A+ Financial Services Ltd., 2013 M.H.R.B.A.D. 3 (Man. Human Rights Comm.) confirming order. [25] Supra. [26] 2000 BCHRT 26 (B.C. Human Rights Trib.) at para. 44. [27] J-Sons Inc. v. N.M. Paterson & Sons Ltd., 2003 MBQB 199 (Man. Q.B.). [28] Note that an adjudicator has determined that fear of the stigma involved in being named as a respondent in a complaint is insufficient cause to remove a respondent’s name from the record (Willcox v. Ladco Co. (c.o.b. Lakewood Agencies), (March , 2011), Walsh, [2011] M.H.R.B.A.D. No. 2 (Man. Bd. of Adjudication). [29] Garland v. Tackaberry, Re, 2013 M.H.R.B.A.D. 5 (Man. Human Rights Comm.) – $7,750 awarded; C.R. v. Canadian Mental Health Assn, supra – where $4,000 was awarded; A. v. Natural Progress Inc. (c.o.b. Little Chief’s Place), supra – where $2,000 was awarded; Dubeck v. Friesen (c.o.b. Vy-con Construction), supra – where $1,500 was awarded; Chestnut v. Theo c. Limited o/a Hampton Inn & Suites, MB HRC, May 25, 2012 (Smordin) – where $2,000 was awarded based on the respondent’s lack of understanding of the law; K.K. v. G.S., (c.o.b. Hair Passion), supra – where $2,000 was awarded; Bourrier v. Phil-Can Services Ltd., 1999 CarswellMan 136, [1999] M.H.R.B.A.D. No. 1 (Man. Bd. of Adjudication) – $1,000 awarded. [30] Bourrier v. Phil-Can Services Ltd., 1999 CarswellMan 136, [1999] M.H.R.B.A.D. No. 1 (Man. Bd. of Adjudication) – $1,000 awarded; Werestiuk v. Small Business Services Inc., 1998 CarswellMan 642, [1998] M.H.R.B.A.D. No. 1 (Man. Bd. of Adjudication); Dubeck v. Friesen (c.o.b. Vy-con Construction), supra – $750 ordered. [31] K.K. v. G.S., (c.o.b. Hair Passion) (January 13, 2013), Harrison, [2013] M.H.R.B.A.D. No. 102 (Man. Bd. of Adjudication) where a claim for 8 weeks’ notice was refused on the basis that the complainant was on medical leave and not able to return to work (paras. 224-227); and C.R. v. C.M.H.A., 2013 M.H.R.B.A.D. 1, [2013] M.H.R.B.A.D. No. 101 (Man. Bd. of Adjudication) – where request of 6 weeks’ notice was granted based on evidence that she was off work for at least that period of time (paras. 169-170). [32] Budge v. Thorvaldson Care Homes, 2002 CarswellMan 463, [2002] M.H.R.B.A.D. No. 1 (Man. Bd. of Adjudication), affirmed 2005 CarswellMan 564 (Man. Q.B.), affirmed 2006 CarswellMan 339 (Man. C.A.); H. (L) v. Vietnamese Non-Profit Housing Corp., 2007 CarswellMan 328, [2007] M.H.R.B.A.D. No. 1 (Man. Bd. of Adjudication). [33] Garland v. Tackaberry, Re, 2013 M.H.R.B.A.D. 5 (Man. Human Rights Comm.) – note arbitrator’s comments that those adversely affected by a human rights contravention should not receive a “windfall”. [34] Bourrier v. Phil-Can Services Ltd., 1999 CarswellMan 136, [1999] M.H.R.B.A.D. No. 1 (Man. Bd. of Adjudication); A similar monitoring order was provided for in the sexual harassment case of Werestiuk v. Small Business Services Inc., supra [35] L.H. v. Vietnamese Non-Profit Housing Corp., supra; Chestnut v. Theo c. Limited o/a Hampton Inn & Suites, supra [36] Chestnut v. Theo c. Limited o/a Hampton Inn & Suites, supra. [37] Garland v. Tackaberry, Re, 2013 M.H.R.B.A.D. 5 (Man. Human Rights Comm.) [38] For example in Korsch v. Manitoba (Human Rights Commission, 2012 MBCA 108, [2012] M.J. No. 378 (Man. C.A.); Rowel v. Union Centre Inc., 2009 MBQB 145, [2009] M.J. No. 215, (Man. Q.B.), affirmed 2010 MBCA 23, [2010] M.J. No. 224 (Man. C.A.), as compared to Canadian Blood Services v. Manitoba (Human Rights Commission), 2011 MBQB 312, [2011] M.J. No. 414 (Man. Q.B.) at para. 17 [39] O’Malley v Simpsons-Sears Ltd., (sub nom. Ontario Human Rights Commission v. Simpsons-Sears Ltd.) [1985] 2 S.C.R. 536 (S.C.C.) at para 28. [40] For example, K.K. v. G.S., (c.o.b. Hair Passion) (January 31, 2013), Harrison, [2013] M.H.R.B.A.D. No. 102 (Man. Bd. of Adjudication) at paras. 146-147.  In this case the in order to establish a prima facie case of discrimination, the Complainant had to prove, on a balance of probabilities, that she had a mental disability at the relevant time, that her employment was adversely affected in some way, and that her disability was one of the factors which motivated the decision or action that adversely affected her employment. Her disability need not be the sole or even the primary reason that her employment was adversely affected; it is sufficient if her disability was one of the factors that influenced the decision or action. [41]Renaud v. Central Okanagan School District No 23 (sub. nom. Central Okanagan School District No. 23 v. Renaud) [1992] 2 S.C.R. 970 (S.C.C.). [42] BCGSEU, supra note [43] For example A. v. Natural Progress Inc. (c.o.b. Little Chief’s Place), supra; and K.K. v. G.S., (c.o.b. Hair Passion), supra [44] Faryna v. Chorny (1951), 1951 CarswellBC 133, [1952] 2 DLR 354 (BCCA). [45] C.R. v. Canadian Mental Health Assn., supra at para. 123. [46] Dubeck v. Friesen, 2002 CarswellMan 601, [2002] M.H.R.B.A.D. No. 2 (Man. Bd. of Adjudication) [47] A. v. Natural Progress Inc. (c.o.b. Little Chief’s Place), para. 67 [48] C.R. v. C.M.H.A., 2013 M.H.R.B.A.D. 1, [2013] M.H.R.B.A.D. No. 101 (Man. Bd. of Adjudication); K.K. v. G.S. (c.o.b. Hair Passion), supra [49] See for example Manitoba (Department of Family Services and Housing) v. M.G.E.U. (A.B.Grievance) (May 4, 2009), Werier, [2009] M.G.A.D. No. 12 (Man. Arb.) and Winnipeg (City) v. ATU, Local 1505 (Levesque), Re, 2006 CarswellMan 892, [2006] M.G.A.D. No. 4 (Man. Arb.) [50] Louis Riel School Division and Louis Riel Teachers’ Assn. (Chapman), Re, 2005 CarswellMan 935, [2005] M.G.A.D. No. 75 (Man. Arb.) [51] Re City of Winnipeg (August 31, 1998), (Wood, [1998] M.G.A.D. No. 43 (Man. Arb.) [52] C.E.P., Local 191 v. Winnipeg Sun, 2005 CarswellMan 523, [2005] M.G.A.D. No. 53 (Man. Arb.) [53] Manitoba Hydro and I.B.E.W. Local 2034 (Sprung), Re, 2013 CarswellMan 773, [2013] M.G.A.D. No. 14 (Man. Arb)

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