CLE Online

Day 1: Tuesday, November 16, 2021

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

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

Honouring the Children: Human Rights, Truth, Reconciliation, and Justice (9:10 – 10:10)

• In 2021, reports of the discovery of unmarked graves of hundreds of Indigenous children have been reported in Canada. These unmarked graves, of which it is anticipated many more will be found, are part of Canada's legacy of colonialism, and in particular the residential school system. The goal of this system, much of which was run by religious institutions, was to "civilize" Indigenous children, and destroy their Indigenous identity. For many generations, Indigenous children were removed from their families, forced into the schools, and subject to widespread abuse, assault and death. Thousands of children never returned home.
• The discovery of these unmarked graves is a long overdue reckoning for Canada. But the fact that Canadians, and many around the world, are shocked by this discovery reveals an important challenge in determining what action we need to take as individuals and groups in response. There is only shock, because the predominant narratives and discourses of history of settler colonial societies, including Canada and the United States, rest upon fictions about the lands that make up their countries, the Indigenous peoples who were here before Europeans arrived, and what violent and racist systems were put in place in order to create these countries.
• When we come to understand that the stories we tell about ourselves are not true, it challenges us to change. This presentation will explore the social, cultural, legal, political, and spiritual dimensions of the challenge of building human rights approaches grounded in truth, and taking social action that can achieve justice and reconciliation, in responses to the discovery of these unmarked graves.

Dr. Mary Ellen Turpel-Lafond/Akikwe — Director of the Indian Residential School History and Dialogue Centre/Professor of Law, Peter A. Allard School of Law, UBC, and Woodward & Company Lawyers LLP, Victoria

"Direct Attacks" and Blowback: The Aftermath of Andrews/Matson and Challenges to Legislation before Human Rights Tribunals (10:10 – 10:40)

• what did Andrews/Matson decide and what was unresolved?
• how have tribunals applied Andrews/Matson?
• what does the primacy clause in s. 4 of the Code mean?
• what is the legal framework for justification/accommodation in such cases?
• what remedies are available?

E.W. (Heidi) Hughes — Ministry of Attorney General, Vancouver
Joana Thackeray — Legal Services Branch, BC Ministry of Attorney General, Vancouver

BREAK (10:40 – 10:55)

Case Law Update (10:55 – 12:10)

• key cases
• analysis and trends
• effects on practice
• the trend is upwards: recent injury to dignity awards at the BCHRT

Christopher M. McHardy — McCarthy Tétrault LLP, Vancouver
Lauren Soubolsky — McCarthy Tétrault LLP, Vancouver
Laura Track — Community Legal Assistance Society, Vancouver

LUNCH (12:10 – 1:10)

Protecting Human Rights During the COVID-19 Pandemic (1:10 – 1:55)

• an overview of recent human rights cases involving COVID-19 and mask mandates, proof of vaccination requirements, visitation restrictions and whether COVID-19 constitutes a disability
• an overview of recent court decisions regarding challenges to COVID-19 public health orders on equality and other Charter grounds as well as due to claims of legislative arbitrariness
• a discussion of other COVID-19 related issues including:
  • the impact of COVID-19 and related public health orders on the vulnerable and/or immunocompromised, including:
    • access to K-12 and post-secondary education
    • long-term care/assisted living—visitation rights and insufficient care
    • access to vaccines and vaccine prioritization
    • access to appropriate PPE for hospital workers, patients, and visitors
    • access to services in the absence of protective measures
  • further legal challenges to vaccine passports and other public health measures
  • discriminatory speech
  • rights and obligations of employers and employees
  • adverse effect discrimination arising from public health measures

Derek G. Knoechel — HHBG Employment Lawyers, Vancouver 
Amy B. Pressman — DLA Piper (Canada) LLP, Vancouver

Privacy in a Pandemic: A Review of COVID-19's Impact on Privacy (1:55 – 2:40)

• an overview of privacy legislation, including amendments relating to COVID-19
• a discussion of privacy rights, obligations, and considerations relating to:
  • collection, use, and disclosure of personal health information from individuals and public bodies
  • COVID-19 testing
  • collection, use, and disclosure of vaccination information
  • vaccine passports
• a review of the law and guidance from the Privacy Commissioners in Canada from the beginning of the pandemic to the present time

Sonya Sabet-Rasekh — BC Government & Service Employee's Union, Burnaby
Kristen Woo — Director, Human Rights Office, Simon Fraser University, Burnaby

COVID-19 Panel Q&A (2:40 – 2:55)

BREAK (2:55 – 3:10)

BC Human Rights Tribunal Update (3:10 – 4:10)

• snapshot of Tribunal backlog
• tribunal Processes and Practice Directives
• the view ahead

Emily Ohler — Chair, BC Human Rights Tribunal, Vancouver

Closing Comments (4:10 – 4:15)

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

Day 2: Tuesday, November 23, 2021

Welcome Back (9:00 – 9:05)

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

Judicial Review Update (9:05 – 9:55)

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

Matthew Allard — Fasken Martineau DuMoulin LLP, Vancouver
Katherine A. Hardie — BC Human Rights Tribunal, Vancouver

Why Have We Left Human Rights Out of Mental Health and Substance Use Care? (9:55 – 10:40)

• overview of human rights issues in BC's mental health and substance use system documented by independent officers and human rights organizations
• summary and discussion of relevant human rights case law developments
• analysis of access to justice barriers for patients to enforce human rights in BC and the resulting impacts on health and human rights

Laura Johnston — Legal Director, Health Justice, Vancouver
Kendra Milne — Executive Director, Health Justice, Vancouver

BREAK (10:40 – 10:55)

Investigation and Evidentiary Issues in Sexual Harassment Complaints Post #MeToo (10:55 – 12:10)

• the history of the #MeToo movement
• investigating sexual harassment complaints post-#MeToo
• evidence of extrinsic sexual conduct: problems and a proposed admissibility framework for tribunal proceedings

Sara Hanson — Moore Edgar Lyster LLP, Vancouver
Rebecca Kantwerg — Victory Square Law Office LLP, Vancouver
Rose A. Keith, QC — Harper Grey LLP, Vancouver
Daniel McBain — Moore Edgar Lyster LLP, Vancouver
Lisa Southern — Southern Butler Price LLP, North Vancouver

LUNCH (12:10 – 1:10)

Investigating Racial Microaggression in the Workplace (1:10 – 2:25)

• overview of how commissions, tribunals and courts have historically dealt with race issues/complaints—focus on comparative research of race based and sexual harassment complaints in the BC Human Rights Commission
• case law considering workplace complaints of racial microaggression
• recommendations for investigating such allegations
• how workplace standards related to racial discrimination have evolved over time
• what happens after the investigation: rebuilding/repairing workplace relationships

Natasha Jategaonkar — Mathews, Dinsdale & Clark LLP, Vancouver
Yuki Matsuno — Southern Butler Price LLP, North Vancouver
Ana Mohammed — ARM Mediation and Consulting, Coquitlam
Jennifer D. Wiegele — Mathews, Dinsdale & Clark LLP, Vancouver

BREAK (2:25 – 2:40)

Ethics Fact Patterns (2:40 – 4:10)

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

Koml Kandola — Kandola Arbitration Services Ltd., North Vancouver
James D. Kondopulos — Roper Greyell LLP – Employment and Labour Lawyers, Vancouver
Clea Parfitt — Clea F. Parfitt, Lawyer, Vancouver

Closing Comments (4:10 – 4:15)

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