Human Rights Conference 2012

Course Date: November 22, 2012

Day 1: Thursday, November 22, 2012

Welcome and Introduction

Sandra F. Guarascio — Roper Greyell LLP, Vancouver
Lindsay M. Lyster — Moore Edgar Lyster, Vancouver

The case of Jeffrey P. Moore v. Her Majesty the Queen In Right of the Province of BC as represented by the Ministry of Education et al: Panel Discussion

  • how do you characterize the service customarily available to the public?
  • does the comparator analysis apply to statutory human rights? if so, how?
  • what is the test for discrimination?
  • how does a public service provider prove undue hardship?
  • how does the discrimination analysis apply in the context of government and other public entities? do special considerations apply?
  • what is systemic discrimination and how do you prove it?

Laura N. Bakan, QC — Guild Yule LLP, Vancouver
Leah Greathead — Legal Services Branch, Ministry of Justice, Victoria
Frances M. Kelly — Community Legal Assistance Society, Vancouver

Networking Break

"Hurt Feelings": A Qualitative and Quantitative Review

  • factors used by the BCHRT on “hurt feelings” awards
  • the variance of those awards by ground under the Human Rights Code, and by the BCHRT member
  • why the awards have increased over time
  • what evidence from the complainant and from experts was necessary generally for a “hurt feelings” award
  • whether the BCHRT member linked the award to medical and psychological expert evidence and the rationale for that linkage
  • how the BCHRT awards for "hurt feelings" differ from
    • similar awards from other human rights tribunals in Canada
    • common law awards for mental distress and for pain and suffering

Thomas F. Beasley — Bernard & Partners, Vancouver 

Judicial Review of BC Human Rights Tribunal Decisions

  • review and update of significant BC Supreme Court, BC Court of Appeal, and Supreme Court of Canada cases
  • the doctrine of prematurity: pros and cons
  • mitigation and the standard of review
  • costs on judicial review of Human Rights Tribunal decisions

Jessica Connell — British Columbia Human Rights Tribunal, Vancouver   
David G. Wong — Fasken Martineau DuMoulin LLP, Vancouver

Networking Lunch

Concurrent Sessions (choose 1)

A. Use of International and Regional Human Rights Instruments to Advance Domestic Aboriginal and Treaty Rights

  • overview of international and regional human rights instruments employed to advance Aboriginal and treaty rights
  • United Nations declaration on the rights of Indigenous peoples
  • United Nations treaty mechanisms and complaint procedures
  • additional United Nations non-treaty mechanisms
  • Organization of American States (OAS)

Jacqueline L. Ott — Treaties and Aboriginal Government Section, Aboriginal Affairs & Northern Development, Department of Justice, Vancouver


B.  Discussion on Family Status Discrimination

  • explore questions for discussion identified in the BCLI study paper
  • development of a policy on family status discrimination in Ontario and Alberta—should BC follow suit?
  • would a policy like this be helpful? what should be contained in such a policy? who should publish this policy?

Tonie Beharrell — Legal Counsel, Health Sciences Association of BC, Vancouver
Krista James — National Director and Staff Lawyer, Canadian Centre for Elder Law, British Columbia Law Institute, Vancouver

How Human Rights Law has Evolved Differently in Tribunals, Arbitrations, and Courts

  • who has jurisdiction over what?
  • use of one forum’s case in another
  • arbitration cases before the BCHRT
  • BCHRT cases before arbitrators
  • specific topics of comparison and how they are treated in each forum
    • addiction, including drug/alcohol testing
    • medical information and IMEs
    • attendance management
    • remedies and damages

Drew G. Demerse — Roper Greyell LLP, Vancouver
Jennifer R. Devins — Roper Greyell LLP, Vancouver

Election Considerations in Code based Discrimination

  • proceeding under the Code in addition to, or instead of, the normal tort route
  • comparative study of the various factors that prudent lawyers should consider and advise their clients upon in any wrongful dismissal action that has a code based discrimination element

Christopher J. Bolan — Armstrong Simpson, Vancouver

Networking Break

Causation in Anti-Discrimination Law

  • the centrality of causation in proving discrimination
  • generalizations, stereotypes, and causal inferences
  • the Adverse Effect framework, pretext, and prima facie proof: a “Taint Theory” approach to causation?
  • what does “because of” mean?
  • “but for” causation and the standard of proof

Thomas D.J. Schiller — Thomas D. Schiller Personal Law Corporation, Vernon 

Reforms to Bullying Legislation in BC: Bill 14 Amendments to the Workers Compensation Act

  • history of s. 5.1
  • what are the obligations
  • how do you monitor it?
  • medical evidence
  • jurisdiction
  • key case law analysis

Robyn Durling — British Columbia Human Rights Coalition, Vancouver
William A. Duvall — Fasken Martineau DuMoulin LLP, Vancouver
Dave Earle — Director, Human Resources Services & Government Relations, Construction Labour Relations, Vancouver
Susan Hynes — Director, Compensation and Assessment Policy, Policy and Regulation Division, WorkSafeBC, Richmond
Lindsay Waddell — Community Legal Assistance Society, Vancouver

Day 2: Friday, November 23, 2012

Welcome and Introduction

Sandra F. Guarascio — Roper Greyell LLP, Vancouver
Lindsay M. Lyster — Moore Edgar Lyster, Vancouver

Duty to Accommodate in a Unionized Workplace

  • when there is a requirement to accommodate, who has the duty to accommodate?
  • what if the employee doesn’t want to name the union?
  • can the union or employer insist on accommodations that affect other employees in the bargaining unit?
  • if other employees are affected, are they entitled to notice and participation in the hearing?

Theodore C. Arsenault — Shortt & Arsenault, Vancouver
Gabe M.A. Somjen — Borden Ladner Gervais LLP, Vancouver

Special Programs and Exemptions Under the Human Rights Code

  • overview of the Tribunal's special program policy and application process 
  • preferential hiring in First Nations communities
  • s. 41 exemption for charitable, philanthropic, educational, fraternal, religious, or social non-profits

Jessica Connell — British Columbia Human Rights Tribunal, Vancouver
Jennifer A. Jamieson — Keri Law, Vancouver
Catherine J. Keri — Keri Law, Vancouver

Networking Break

Update on Sexual Harassment Law

  • is sexual harassment gender discrimination?
  • damage awards and other remedies
  • class actions
  • Tribunal vs. arbitration
  • case law analysis

Jessica L. Derynck — Moore Edgar Lyster, Vancouver 
Carol Whittome — Moore Edgar Lyster, Vancouver

Lunch With Featured Speaker

Gail Davidson — Executive Director, Lawyers' Rights Watch Canada, Vancouver 

Concurrent Sessions (choose 1)

A.  Addiction in the Workplace

  • addiction as a disability
  • case law
  • employer’s duty to inquire and accommodate
  • discipline
  • strategies
  • last chance agreements

Eleni Kassaris — Blake, Cassels & Graydon LLP, Vancouver
Megan E. Tweedie — Coutts Pulver LLP, Vancouver


B.  Child Welfare on Reserve

  • the history of assimilation of First Nations children in Canada and ongoing issues related to children in care
  • an examination of the human rights complaint filed by first Nations Child and Family Caring Society of Canada with the CHRT and its judicial review
  • an examination of human rights jurisdictional issues as they relate to First Nations children on reserve
  • First Nations child welfare as an emerging area of human rights in Indigenous law

Christopher G. Devlin — Devlin Gailus, Victoria

Networking Break

Ethics Fact Patterns

  • what would/should you do?
  • discussions in context

Master Heather M. MacNaughton — Supreme Court of BC, Vancouver
Gabe M.A. Somjen — Borden Ladner Gervais LLP, Vancouver
Catherine A. Sullivan — BC Government Employees' Union, Burnaby

Case Law Update

  • key cases
  • analysis, impact, and effects
  • trends

Christopher M. McHardy — McCarthy Tetrault LLP, Vancouver