Category: Case Comments

First Nations Child and Family Caring Society of Canada v. Canada, 2019 CHRT 39

Contributed by Maya Gunnarsson

The McGill Journal of Law and Health and the Indigenous Law Association at McGill Blog are collaborating on our blogs this year, in order to connect our readers with more content at the crossroads of health law, and Indigenous law and legal traditions.  You can find this article cross-posted on their website.

Introduction

The Canadian Human Rights Tribunal released their latest decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) in September 2019. This ruling was the 9th issued by the Tribunal since 2016, when they found the Caring Society’s allegations that Canada was discriminating against First Nations children in their provision of child and family services were substantiated.

“This ruling is dedicated to all the First Nations children, their families and communities who were harmed by the unnecessary removal of children from your homes and your communities. The Panel desires to acknowledge the great suffering that you have endured as victims/survivors of Canada’s discriminatory practices.” 

Caring Society v. Canada, 2019 CHRT 39 at para 13.

The purpose of this ruling was to determine the compensation Canada would be ordered to pay due to their discriminatory practices. More broadly, however, this decision attempted to bring justice to an extremely vulnerable group of people who have historically been denied access to justice through Canadian institutions. Since the initial ruling in 2016, the Tribunal had issued multiple remedial orders against Canada, finding that they were continuing to discriminate, and giving clear orders on what the federal government needed to do to comply with its 2016 decision. While the federal government may have been dragging its heels, the Tribunal firmly took a step towards reconciliation in Canada with this decision. Continue reading “First Nations Child and Family Caring Society of Canada v. Canada, 2019 CHRT 39”

Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC

Contributed by Loïc Welch

Introduction

“The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively” (para 96)

The Charter of Rights and Freedoms guarantees that every Canadian has a fundamental right to life, liberty, and security. Moreover, as stated by Dr. Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization, “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

In Canada, the Crown has recognized and affirmed Indigenous rights, and has a duty to consult whenever governmental action may adversely affect these rights. However, what triggers this duty is being hotly disputed in the courts, as many cases have made their way to the Supreme Court of Canada in recent years. Continue reading “Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC”

Stewart v Elk Valley Coal Corp., 2017 SCC 30

Contributed by Jenny Wang

Earlier this year, the Supreme Court of Canada confirmed and clarified the legal regime governing discrimination in the workforce based on disability pursuant to s.7 of the Alberta Human Rights Act (Act). In Stewart v. Elk Valley Coal Corporation, the majority of the court upheld the Alberta Human Rights Tribunal’s decision that the termination of a cocaine addicted employee did not constitute discrimination in the workplace. There has been a lot of discussion regarding the implications of the majority’s decision. Some believe that its practical effect would be to deprive drug-dependent employees of human rights protection in the workplace, while others argue that the highly dangerous nature of the work environment necessitated such a decision.

Mr. Stewart worked in a mine operated by Elk Valley Coal Corporation (the employer). As the mines were extremely dangerous, workplace safety was a primary concern for Elk Valley Coal Corporation. The employer established a policy requiring employees to disclose whether they had any drug dependencies or addiction issues. Upon disclosure, these employees would be offered treatment from the employer. In addition, the policy specified a “no free accident” rule such that if one were to be involved in a workplace accident and was subsequently tested positive for drug use, the employee would be terminated immediately if he or she had failed to disclose the addiction.

After being involved in a workplace accident, Mr. Stewart was tested positive for drugs and admitted that he was addicted to cocaine. Nine days later, Elk Valley Coal Corporation terminated Mr. Stewart. As addiction is a recognized disability under the Act, Mr. Stewart argued that the termination constituted discrimination based on disability pursuant to s.7 of the Act.

To claim discrimination under the Act, the plaintiff must first show a prima facie case of discrimination. To do so, the employee must prove: “(1) a disability which is protected under the Act; (2) adverse treatment with regard to his employment or a term of that employment; and (3) that the disability was a factor in the adverse treatment.” Once a prima facie case is established, the onus shifts to the defendant to show that the employer accommodated the employee to the point of undue hardship for the employer. Continue reading “Stewart v Elk Valley Coal Corp., 2017 SCC 30”

Saadati v Moorhead, 2017 SCC 28

Contributed by Pouya Dabiran-Zohoory

Background

Canadian Tort law has developed to require four broad criteria to satisfy a claim in negligence: 1) A duty of care which is owed to the plaintiff, 2) a breach of that duty which, 3) leads to damages, and 4) a legal and factual causal relationship. Historically, the common law has been hesitant to recognize non-physical injury as compensable, with additional requirements for proving psychiatric injury. Canadian common law has been shifting away from this requirement, with both the Mustapha v Culligan (Mustapha) decision in 2008 and the recent decision of Saadati v Moorhead (Saadati) in 2017, discussed here. Saadati has made it less onerous for plaintiffs to prove “psychiatric” injury.

The main issue in Saadati was defining “mental injury” in a claim of negligence, and deciding how that can be determined to exist in court. More specifically, the issue was whether a claim of mental injury must conform with what an expert witness from the medical community has defined as a psychiatric injury, or whether the determination necessarily belongs to the trier-of-fact. Continue reading “Saadati v Moorhead, 2017 SCC 28”

Thompson v Ontario (Attorney General), 2016 ONCA 676

Posted By Liam Harris

Background

In 2000, the Ontario legislature introduced a series of amendments (Brian’s Law) to the Mental Health Act and the Health Care Consent Act, broadening the criteria for civil committal and creating a community treatment order (“CTO”) regime in Ontario. Motivated by the murder of media personality Brian Smith by a man suffering from untreated schizophrenia, the CTO regime is a form of compulsory psychiatric treatment imposed on individuals fulfilling prescribed criteria by their doctors. Patients, usually suffering from schizophrenia or related disorders, are ordered to comply with their treatment plan and face the possibility of involuntary hospitalization if they fail to agree to or to comply with the order.

CTO regimes and other forms of out-patient committal have attracted considerable legislative attention in recent decades. As mental health systems shift away from large-scale institutionalization, community treatment is seen by some as a favorable middle ground that provides people with the assistance they require without subjecting individuals to onerous involuntary detention. Detractors, however, point out that attaching the looming threat of committal to treatment plans risks broadening the scope of forced treatment. The delicate balance that needs to be struck between individual autonomy and enthusiasm for treatment in this type of regime invites constitutional scrutiny. Continue reading “Thompson v Ontario (Attorney General), 2016 ONCA 676”