CLE Online

Day 1: Thursday, November 3, 2022

Welcome and Land Acknowledgement (9:00 – 9:10)

Genevieve Chang (she/her) — Program Lawyer, CLEBC, Vancouver
Elder Carleen Thomas — Tsleil-Waututh Nation, North Vancouver
Sandra F. Guarascio (she/her) — Roper Greyell LLP, Vancouver
Lindsay Waddell (she/her) — Moore Edgar Lyster LLP, Vancouver

Case Law Update (9:10 – 10:00)

• analysis and trends
• effects on practice

Christopher M. McHardy (he/him) — McCarthy Tétrault LLP, Vancouver
Lauren Soubolsky (she/her) — McCarthy Tétrault LLP, Vancouver

BREAK (10:00 – 10:15)

Administrative Delay: Blencoe 25 Years Later—Systemic Delays and Recommendations for Change (10:15 – 11:05)

• review administrative delay decisions since Blencoe
• analyze the volume of complaints and the average amount of time in each stage of the current BCHRT adjudicative system (intake, mediation, dismissal applications, and adjudication) from 1996 to the present
• review the human rights intake and adjudication processes in the other 13 Canadian jurisdictions, with respect to their systems, tools, and timelines
• make recommendations for:
  • changes to the BCHRT system to reduce administrative delays and costs, and to increase operational efficiencies and complaint resolutions
  • additional tools at intake and adjudication
  • system based changes that would move human rights adjudication from being centred on paper and lawyers to being more people and resolution focused

Tom Beasley (he/him) — Bernard LLP, Vancouver
Meera Bennett (she/her) — Legal Counsel, Ministry of Attorney General, Vancouver

The Changing Make Up of the "Reasonable Person" in Sexual Harassment Cases and Beyond (11:05 – 12:00)

• changes to the "reasonable person" and challenges to the "objective unwelcomeness" test in Basic v. Esquimalt Denture Clinic Ltd., 2020 BCHRT 138 and Ms. K. v. 0932008 BC Ltd., 2021 BCHRT 158
• the impact of these decisions on Tribunal, Arbitration and other administrative law decisions (e.g., WorkSafe) and the implications of this new direction

Reut Amit (she/her) — Southern Butler Price LLP, North Vancouver  
Tonie Beharrell (she/her) — Southern Butler Price LLP, North Vancouver

LUNCH with Featured Speaker (12:00 – 1:15)

Indigenous Identity

Amber Prince (she/her) — BC Human Rights Tribunal, Vancouver

Challenging Non-disclosure Agreements and the Harm they Cause: Paving the Way for More Trauma-informed Approaches (1:15 – 2:20)

• the evolution of the use of NDAs in settlements of sexual harassment cases, and the movement to limit their use in other jurisdictions, including a comparative analysis of legislation that restricts their use
• frontline perspectives of the psychological harm, further trauma, and the fear that some individuals who are silenced by signing an NDA experience preventing them from getting the help they need
• issues to consider when advising a client regarding an NDA, strategies complainant's counsel may use to limit the restrictions of an NDA, and what respondent's counsel should consider to be more trauma-informed
• increasing use of defamation claims to silence complainants and bystanders, available defences, the reality of the risks to complainants from a trauma-informed perspective

Dalya Israel (she/her) — Executive Director, WAVAW Rape Crisis Centre, Vancouver 
Jennifer Khor (she/her) — Supervising Lawyer, SHARP Workplaces Legal Advice Clinic, Community Legal Assistance Society, Vancouver 
Clea Parfitt (she/her) — Clea F. Parfitt, Lawyer, Vancouver
Daniel J. Reid (he/him)— Harper Grey LLP, Vancouver

Can Litigation be Retaliation? Reprisals, Retaliation, and Human Rights Tribunal Jurisdiction Over Countersuits (2:20 – 3:00)

• what is retaliation?
• what is the purpose of statutory protections from retaliation in human rights legislation? what do they protect against?
• how have human rights tribunals dealt with retaliation claims arising from countersuits (second lawsuits against a complainant in another forum)?
• as a matter of statutory interpretation, what is the scope of s. 43 of BC's Human Rights Code?
• what are the implications of interpreting s. 43 to include/exclude countersuits?
• what insights can be drawn from the experience of other human rights tribunals in Canada? and from statutory decision-makers in BC?

Joanne Kim (she/her) — Ministry of Attorney General, Vancouver  
Joana Thackeray (she/her) — BC Human Rights Tribunal, Vancouver

BREAK (3:00 – 3:10)

Emotional Support Animals (3:10 – 4:00)

• differentiating between emotional support animals, guide and service animals, and assistance animals
• how has the BC Human Rights Tribunal adjudicated complaints relating to emotional support animals?
• how should organizations evaluate requests for emotional support animals? What are the practical difficulties with evaluating such requests?

Harmit Sarai (she/her) — Forte Workplace Law, Surrey
V. Victoria Shroff (she/her) — Shroff & Associates (Shroff Animal Law), Vancouver
Kristen Woo (she/her) — Director, Human Rights Office, Simon Fraser University, Burnaby

BC Human Rights Tribunal Update (4:00 – 4:40)

Emily Ohler (she/her) — Chair, BC Human Rights Tribunal, Vancouver

Day 2: Friday, November 4, 2022

Welcome (9:00 – 9:10)

Judicial Review Update (9:10 – 10:00)

• review and update of significant BC Supreme Court, BC Court of Appeal, and Supreme Court of Canada cases

Katherine A. Hardie (she/her) — BC Human Rights Tribunal, Vancouver
David G. Wong (he/him) — Fasken Martineau DuMoulin LLP, Vancouver

BREAK (10:00 – 10:15)

Five Years Out: The Impact of Schrenk on Human Rights Jurisprudence Across Canada (10:15 – 11:00)

• is the ratio from Schrenk being properly applied? That is, are tribunals, commissions and courts conducting a contextual analysis in order to determine if there is a sufficient nexus between the discriminatory conduct and the employment context? 
• are the concurring and dissenting reasons being considered in the application of Schrenk?
• has the decision in Schrenk been applied to other areas of discrimination, that is, beyond discrimination regarding employment?
• what impact, if any, has the decision in Schrenk had on human rights and, in particular, the volume of complaints that commissions or tribunals receive?

Daniel McBain (he/him) — Moore Edgar Lyster LLP, Vancouver 
Leanne Monsma (she/her) — Fasken Martineau DuMoulin LLP, Vancouver

Human Rights Commissioner's Inquiry and Intervention Powers Under the Human Rights Code (11:00 – 12:00)

• how the Commissioner is utilizing her inquiry powers, including:
  • how we are conducting the Commissioner's first public inquiry into hate during the COVID-19 pandemic
  • how the Commissioner has used her order powers in both the Hate Inquiry and in work related to systemic discrimination in policing
  • providing an overview of research reports for the Hate Inquiry
  • how we're addressing qualitative and quantities data and evidence when conducting inquiries
  • ways that we're trying to design Inquiry procedures in a trauma-informed and procedurally fair manner
• how the Commissioner chooses cases to intervene in and a summary of the cases she's intervened in so far

Carly Hyman (she/her) — Staff Lawyer – Inquiries and Investigations, BC's Office of the Human Rights Commissioner, Victoria
Sarah Khan, KC (she/her) — General Counsel, BC's Office of the Human Rights Commissioner, Vancouver 
Guuduniia La Boucan (she/her) — Staff Lawyer, BC's Office of the Human Rights Commissioner, Victoria

LUNCH with Featured Speaker (12:00 – 1:30)

Reconciliation in Action in the Legal Profession

Isabel (Sa-Gyo) Jackson (she/her) — Department of Justice, Vancouver

Issues in Human Rights for Trans People (1:30 – 2:20)

• gender identity and gender expression case law relating to the workplace
• elements of a gender-affirming workplace 

barbara findlay, KC (she/her) — Law Office of barbara findlay KC, Vancouver
Adrienne S. Smith (they/them) — Adrienne Smith Law, Vancouver

BREAK (2:20 – 2:35)

Group and Class Complaints (2:35 – 3:25)

• what is the criteria for a complaint to be accepted as group or class complaint?
• what are the challenges?
• review of Golden Eagle Blueberry Farm decision

Aleem S. Bharmal, KC (he/him) — Community Legal Assistance Society, Vancouver
Jonathan Blair (he/him) — Community Legal Assistance Society, Vancouver
Nazeer T. Mitha, KC (he/him) —Mitha Law Group, Vancouver

Mental Health and Performance Management: Threading the Needle (3:25 – 4:15)

• the interplay between an employer's duty to accommodate mental illness and an employer's obligation to engage in appropriate performance management
• challenges for practitioners advising both employers and employees, given the rise in mental health awareness, and in a remote work environment where identifying and accommodating mental health concerns is more difficult
• the legal issues inherent in these situations, and share practical guidance on navigating them effectively, with a particular focus on accommodation strategies

Richard B. Johnson (he/him) — Ascent Employment Law Corporation, Vancouver
Victoria Merritt (she/her) — Dentons Canada LLP, Vancouver
Dr. Jaleh Shahin, M.Ed., PhD, ABPP (she/her) — Registered Psychologist (BC, Alberta & Ontario), Board Certified in Clinical Psychology, UPsilon Clinic Inc., Vancouver 

Closing Comments (4:15 – 4:20)