Reported Elsewhere: The Limits of Liability in Canada's File-Sharing Lawsuits

The Limits of Liability in Canada's File-Sharing Lawsuits

Michael Geist

Law professor, columnist, author

Over the past couple of days, there have been multiple reports about the return of file sharing lawsuits to Canada, with fears that thousands of Canadians could be targeted. While it is possible that many will receive demand letters, it is important to note that recent changes to Canadian copyright law limit liability in non-commercial cases to a maximum of $5,000 for all infringement claims.

In fact, it is likely that a court would award far less -- perhaps as little as $100 -- if the case went to court as even the government's FAQ on the recent copyright reform bill provided assurances that Canadians "will not face disproportionate penalties for minor infringements of copyright by distinguishing between commercial and non-commercial infringement."

Injunction against Suncor drug tests upheld on appeal

CBC News Posted: Nov 28, 2012 4:36 PM MT

Suncor Energy has lost an appeal of a temporary injunction that prohibits the start of random drug and alcohol testing on its employees.

The Alberta Court of Appeal turned down the request on Wednesday after hearing arguments from the oilsands giant.

Civil liberties and human rights groups oppose Bill S-7 (Combating Terrorism Act)

Toronto - November 28, 2012 - Representatives from civil liberties and human rights groups will testify before the Standing Committee on Public Safety and National Security on Wednesday, November 28 and Monday, December 3 to express their opposition to Bill S-7 (Combating Terrorism Act). The British Columbia Civil Liberties Association (BCCLA), the Canadian Council on American-Islamic Relations (CAIR-CAN), the Canadian Civil Liberties Association (CCLA), the International Civil Liberties Monitoring Group (ICLMG), the Canadian Association of University Teachers (CAUT) and La Ligue des droits et libertés are united in their opposition to the reintroduction of controversial security provisions into the Criminal Code of Canada.   In a joint statement released today, all are in agreement that the current powers of law enforcement already allow security agencies to pursue, investigate, disrupt, and successfully prosecute terrorism-related crimes. Excerpt of joint statement: Bill S-7, also known as the ‘Combating Terrorism Act’, would allow persons to be detained for up to three days without charge ("preventive arrest"); strip individuals of their basic rights as accused under criminal proceedings to know and challenge evidence against them; threaten them with criminal punishment; and compel individuals to testify in secret before a judge in an "investigative hearing". Further, the judge may impose imprisonment of up to 12 months if the person does not enter into recognizance. Individuals subject to these provisions do not necessarily have to be suspected of committing any crime. It is enough that they are alleged to have information relating to a terrorism offence, or that they are alleged to be associated with another individual suspected of committing (or about to commit) a terrorism offence, or that they are otherwise suspected of potential future involvement with a terrorism offence. Furthermore, the scope of Bill S-7 extends beyond Canada’s borders, and could potentially result in a reliance on foreign intelligence. Without the ability to challenge evidence, there is no guarantee that the evidence is accurate, or was not obtained from a third country or source that conducts or condones torture as a method to elicit information. [It should be noted that the Canadian government has already given the green light to law enforcement agencies to accept information that may have been derived through torture, in violation of international agreements and standards].

Public Safety committee hearings on Bill S-7

November 28

 

Where:  151 Sparks Street, Room 306 When:   4:30 - 5:30 p.m , Wednesday, November 28, 2012

Who:    Carmen Cheung, Senior Counsel, British Columbia Civil Liberties Association (BCCLA)

              Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association (CCLA)       

December 3

Where:  To be determined

When:   tbd, December 3, 2012

Who:     Denis Barrette, spokesperson, International Civil Liberties Monitoring Group (ICLMG) and la Ligue des droits et libertés

Backgrounder on the Temporary Foreign Worker Program

Fast facts

• For the first time in its history, in 2007 and 2008 Canada welcomed more temporary than permanent residents.
• Between 2005 and 2008 there was a 5.7% decline in permanent residents (from 262,241 in 2005 to 247,202 in 2008) and a 37.6% increase in temporary entrants (190,724 students and temporary workers entered Canada in 2005, and 272,520 entered in 2008).
• The number of temporary foreign workers entering Canada has gone up 71.2% between 2004 and 2008 (from 112,719 in 2004 to 193,061 in 2008).
• Temporary residents do not have access to the same supports and services as permanent residents.
• Most of the growth in the temporary worker program is the result of the Low Skill Pilot Project. This pilot allows for the expedited entry of temporary workers with little education or skills who are dependent on their recruiters and employers, are ineligible for services and therefore vulnerable to exploitation.
• Low-skilled temporary workers cannot apply for permanent residence through the federal immigration system.
• Experience in other countries has demonstrated that similar "temporary guest worker" programs have resulted in the creation of an undocumented underclass and its accompanying difficulties.

Conservatives fast-track workers into Canada by relaxing Temporary Foreign Worker regulations

In April, the Harper Conservatives make sweeping changes to the Temporary Foreign Worker Program by introducing an Accelerated Labour Market Opinion (ALMO) stream for higher skilled foreign workers.

Diane Finley, Minister of Human Resources and Skills Development, made the announcement while touring Advance Engineered Products Ltd.’s manufacturing facility in Nisku, Alberta. The move was defended by Conservative MPs as eliminating "unnecessary red tape."

But the review leading to the new TFWP rules was conducted behind closed doors, with no public input. Only employers were invited to participate, despite labour and other advocacy groups asking to take part in the process. Their requests to make submissions were also refused.

The Alberta Federation of Labour denounced the new ALMO stream as a "monster" and "clearly designed to drive down wages," with new minimum standards, such as a 10 business-day wait period and the ability of employers paying foreign workers up to 15 per cent less than Canadian workers.

Harper Conservatives Repeal the Fair Wages Act
 
The federal Fair Wages and Hours of Labour Act was repealed by a single line in the 425-page federal omnibus budget bill in May of this year. The act mandated minimum wages contractors had to pay their workers on federal government construction contracts, calculated based on the prevailing wages in the geographic region. NDP MP Pat Martin discovered the move just weeks before the budget passed. Prior to that, the government made no mention of its decision.

In response to criticisms, Federal Labour Minister Lisa Raitt dismissed the legislation as "unnecessary red tape for employers," which was "really a matter of provincial jurisdiction." At the same time, she maintained that scraping the act would not impact construction wages. Except for her claim that scrapping the act won’t deflate wages, Raitt’s position is lockstep with that of Merit Canada, the anti-union contractors’ association with a history of lobbying against the act. In an open letter to Raitt last fall, Merit Canada criticized the legislation for resulting in workers receiving wages that "often exceed the rates that would be payable in the absence of such policies."

It was a move that had members of the opposition parties fuming, particularly NDP MP Pat Martin who discovered the change among 70 or so other proposed changes in the bill. The former journeyman carpenter said the drop in wages would deter Canadians from entering the construction industry during a debate in the Commons in early May:

"Contractors who bid a job by pricing out labour at 20% and 30% and 40% lower than their competitors will win every job, every time. They will drive down the prevailing wage, because those other contractors will now have to start bidding lower if they are to ever win a job.

"To whose benefit is it to drive down the fair wages of Canadian workers? Let me point out a secondary problem this raises. How are we going to attract bright, young men and women into the building trades if the normal wage is now going to be $8, $9 or $10 an hour instead of the $20 or $30 that it is now? Try feeding a family on $8, $9 or $10 an hour. Nobody in his or her right mind is going to go into that industry." 

Laurie Hawn Edmonton Centre, AB responded by saying, "Mr. Speaker, I always enjoy the performance of my thespian friend from Winnipeg. I would like to make a connection to something his boss said, who is in favour of shutting down the oil sands. I would like to make the connection between the oil sands and the manufacturing industry in Ontario that he cares so much, which I applaud, and the construction industry across the country.

"Talking about cars and toys for kids, if his boss had his way and shut down the oil sands, there would be nobody in Alberta buying the cars that nobody in Ontario would be making. There would be no workers building, not just in Alberta but in other parts of the country. Could he make that connection for me?"

Scrapping the Fair Wages Act followed the Harper Conservatives ordering workers from both CP Rail and Air Canada back to work, and in each case within a few days of strike action.

Academic Study of Temporary Foreign Workers
 
In January this year, Nicolas Schmitt from Simon Fraser Uuniversity's Department of Economics, and Dominique Gross from SFUs School of Public Policy, release an academic study called Temporary Foreign Workers and Regional Labour Markets In Canada.

Their report highlights that beginning in 2002, the temporary foreign worker program has been expanded and conditions to access made easier. And although the two authors unequivocally state study in this area of public policy is in its infancy and much more research needs to be done, initial findings into the expansion of the TFWP suggest policy makers got it wrong and changes have been a detriment on Canada’s labour market.

Auditor General’s damning report

Canada’s former Auditor General, Sheila Fraser, released her Fall Report on November 3, 2009 containing the chapter Selecting Foreign Workers Under the Immigration Program including an examination of how the government manages the Temporary Foreign Worker Program. In this damning report, Ms. Fraser exposes major problems with key aspects of Canada's immigration system that finds Ottawa is bringing in big changes with little understanding of the potential consequences. Ms. Fraser said decisions in the Canadian immigration system are increasingly being shifted to the provinces and people who employ immigrants without any follow-up to root out fraud and abuse. She took direct aim at the Temporary Foreign Worker Program, which she said is bringing in an increasing number of often low-skilled workers for jobs ranging from oil sands labourers to construction workers on Olympic sites and live-in nannies.

Media investigation into temporary foreign workers

 At the same time, the Toronto Star, in a three-part series, investigates Canada’s program for bringing in temporary workers. The Star investigation found the recession, employer abuse and poor monitoring is leaving more and more of these workers vulnerable and without legal employment. The three articles point to a program that "has been widely criticized for being poorly monitored and leaving low-skilled migrants vulnerable to abuse."

Poverty advocacy group takes on issues surrounding temporary foreign workers

In July 2009, Maytree released Naomi Alboim’s report Adjusting the Balance: Fixing Canada’s Economic Immigration Policies, proposing a new national vision for economic immigration. Among the 15 recommendations, Ms Alboim also listed three that dealt with the Temporary Foreign Worker Program. She made the following three recommondations:

Recommendation #1: Eliminate the Low Skill Pilot Project for temporary foreign workers.

Temporary foreign workers are vulnerable to exploitation and abuse at the low end. Unlike the Live-In Caregiver Program which has a built-in transition to permanent residence, and the Seasonal Agricultural Workers Program which is tightly controlled, the Low Skill Pilot Project runs the risk of becoming Canada’s version of the European Guest Workers’ program with all its difficulties. Therefore, the Low Skill Pilot Project for temporary foreign workers should be eliminated as soon as possible.

To increase the pool of workers to fill low-skilled jobs on an ongoing basis, employers should make these jobs more attractive to people already in Canada, whether immigrants or Canadian born. In addition, Citizenship and Immigration Canada should increase family class and refugee admissions to provide more labour force participants who, as permanent residents, have rights and access to services to prevent exploitation. Increasing points in the Federal Skilled Worker Program for demand occupations, the trades, and validated job offers will also broaden the pool of workers.

Recommendation #2: Monitor recruitment and working conditions of temporary foreign workers.

While workplace safety and employment standards come under provincial jurisdiction, temporary foreign workers are a federal responsibility. The federal government should therefore provide leadership and support to provinces to help them monitor and enforce the working conditions of temporary foreign workers (including live-in caregivers and seasonal agricultural workers) and to regulate recruitment agencies.

Recommendation #3: Strengthen the "labour market opinion" process.

Before recruiting temporary foreign workers, employers must generally obtain a positive labour market opinion from Human Resources and Skills Development Canada to ensure that the recruitment is warranted.

A strong labour market opinion process is essential to protect unemployed and underemployed Canadians and permanent residents. It also ensures that temporary workers do not jump the queue of applicants for permanent residence. The labour market opinion process should be strengthened in the following ways:

• Require employers to search the database of those already in Canada and those in the applicant inventory recommended above before being considered for approval of a highly skilled temporary worker.
• Provide positive labour market opinions only after the employer’s recruitment practices, training, wages and working conditions have been reviewed and determined not to be a barrier to employing unemployed or underemployed people already in Canada.
• Implement a monitoring system to follow up on employers who were issued positive labour market opinions to ensure the proper treatment of temporary workers and others in the workplace.

Alberta Federation of Labour Takes On Advocacy Work For TFWs

In response to growing concerns, the Alberta Federation of Labour launches a Temporary Foreign Worker Advocate program to offer free services to TFWs needing assistance with work-related problems. The Advocate was launched in April 2007, with Edmonton lawyer Yessy Byl serving as the Advocate.

The Advocate releases findings after six months of assisting TFWs in a report called Temporary Foreign Workers – Alberta’s disposable workforce. The report covers the Advocate’s activities until October 31, 2007.

Then in April 2009, The Advocate releases a second report called Entrenching Exploitation, which highlights re-occurring issues found in the Advocate’s casework. The report documents significant employer abuses and exploitation of foreign workers, plus highlights serious shortcomings of the TFWP Advocate's caseload while serving as a volunteer lawyer and advisor to the program.

Temporary foreign worker update

Spectre of racism raised

VANCOUVER - Debate? Or hate?
The use of temporary workers from China at a northern B.C. coal mine has sparked a court fight, duelling versions of events, a federal review and a great deal of discussion.
And that's good, says Victor Wong of the Chinese-Canadian National Council.
But the issue around HD Mining International Ltd.'s decision to bring in the foreign workers for its Murray River coal mine near Tumbler Ridge, B.C., also highlights an "anti-China bias" that threatens to descend into plain, old-fashioned racism, he said.

Dehua shuts separate project over temporary worker concerns

VANCOUVER - One of the companies behind a plan to bring Chinese workers to a coal mine in B.C. has shut down a separate project due to a legal challenge over foreign worker permits.

Steelworkers protest over issues of Canadian jobs and safety for temporary foreign workers in BC coal mines

PRINCE GEORGE - Members of the Steelworkers Union protest outside the Prince George office of Pat Bell, Minister of Jobs and Skills Training. Tension grew last week in the wake of hundreds of temporary foreign workers being hired by HD Mining International for initial work on a long wall project for the company's Murray River mine.

Steelworkers put Liberal MLA Bill Bennett on notice during protest

CRANBROOK –Steelworkers from the East Kootenays speak loudly Wednesday about the Christy Clark government’s BC Jobs Plan, plus serve a notice of eviction to Liberal MLA Bill Bennet to take effect election day 2013.

HD Mining appeals unions standing in judicial review

VANCOUVER - The company bringing workers from China for its northern B.C. coal mine has filed an appeal of a Federal Court ruling granting two unions the right to pursue a judicial review of the decision to grant the temporary foreign worker permits.

United Steelworkers challenge BC government to suspend mining operation over safety of temporary foreign workers

The United Steelworkers (USW) District 3 is challenging the BC Minister of Energy and Mines to order a suspension of work at HD Mining International’s Murray River coal mine in northern British Columbia.

A lawyer representing the USW filed the complaint against HD Mining with B.C.'s Minister of Energy and Mines Rich Coleman and Chief Inspector of Mines Al Hoffman Wednesday citing numerous violations of the Health Safety and Reclamation Code for Mines in British Columbia.

The complaint involves the company's use of temporary foreign workers from China and its plans to teach those workers only 100 words of English prior to commencing work.

The USW complaint points to sections of the B.C. Mines Code, which requires that in order to understand and comply with the occupational health and safety rules and standards, all workers in mines must have appropriate facility in the English language.

"Given the dangers posed by a continuous production underground coal mine, it is critical that all workers have a clear understanding of workplace safety and rules at all times. Inserting a foreign national without fluency in English into such a maze of overlapping and precise safety requirements is a recipe for disaster," says Steve Hunt, United Steelworkers Director for Western Canada (District 3).

The USW complaint follows court action recently initiated by The International Union of Operating Engineers Local 115 and the Construction and Specialized Workers Union Local 1611. Those two unions are seeking a federal judicial review of approximately 200 temporary foreign worker permits granted to HD Mining for its mine near Tumbler Ridge, B.C.

Lawyers for the company and the federal Immigration and Human Resources departments sought to have the application dismissed. But yesterday, the Federal Court ruled it would hear the challenge brought by the two unions. Judge Douglas Campbell said in his decision there is a public interest in the case.

"I note that presently there is almost no knowledge of the contents of the (labour market opinions) in question, nor is there a method in the present circumstances by which their production can be ordered without granting the applicants standing in these proceedings," Campbell wrote.

At the provincial level, the BC Code mandates individual workers understand and fully comply with the following documents and procedures:

• The operation of a joint health and safety committee
• Material safety data sheets
• Extensive confined spaces procedures
• Special requirements and training of a mine rescue team member
• The written lockout procedure and training
• Log books for suspended work platforms
• Emergency and rescue plans
• All provisions of the Mines Act, Regulations and the Code, in relation to the operation of mobile equipment
• Log books for mobile equipment
• Operating procedures for the introduction of water into rock passes

Hunt says these requirements make clear how essential it is to the safety of each employee that everyone on a mine site has an adequate grasp of the English language.

"Given the importance of competency to the safe operation of a mine, the idea of teaching employees only 100 words of English is extremely disturbing, and it is clearly contrary to the purposes of the Mine Code," Hunt says.

"This rudimentary knowledge of English will not even come close to satisfying the requirements of the Code."

The union is asking the provincial government invoke its powers to order a suspension of work at HD Mining Murry River operation. It is also asking the ministry utilize its powers under the Mines Act to conduct an investigation into the alleged violations.

Wildrose Party policies defile Canadian Charter of Rights and Freedoms

by Bobbie Saga

Wildrose Party leader Danielle Smith refused to say Wednesday whether she personally believes in the concept of "conscience rights."

It’s a concept whereby commissioners can opt-out of marrying same-sex couples, or doctors can opt-out from prescribing birth control pills to a patient, or family planning counselors can opt-out of referring women for appropriate family planning – all in the guise of freedom of conscience and guided by a person’s values or beliefs.

It seems an unbelievable concept, this twist of Canadian Charter rights that cloaks discrimination. Yet the specter of religious fanatics and their nefarious influence are pushing for such policies, most notably within Alberta’s far right of the political spectrum. And it’s become a familiar aspect of Alberta’s provincial election with home-schooling parents pushing for their "god given right" to pick and choose what’s taught to their children in a publicly funded education system, or the chant to limit access to justice by way of abolishing the Human Rights Commission (HRC).

These intolerant polices should scare anyone who believes in a respectful society whereby everyone's rights are taken seriously and are balanced with competing views and guided by the Charter of Rights and Freedoms and not by one's personal values and beliefs. The whole concept smacks of state-sanctioned bigotry and justification for zealots imposing their views and values on the rest of society. Plus, it does so in tandem with another Wildrose policy that taints the purpose and value of HRCs and would limit access to justice for only those well-heeled enough to afford it. Indeed, in the November/December 2010 issue of Canadian Human Rights Reporter, it was noted that, "none of the last five full external reviews of human rights processes in Canada have seen any merit in abandoning human rights tribunal systems in favour of high courts!"

How is this "conscience rights" policy any different from the Jim Crow laws in the US that allowed systemic discrimination and widespread de jure racial segregation in all public facilities with a supposedly "separate but equal" status for black Americans? This separation led to unequal economic treatment in bank lending practices, in employment, in education, in housing with all leading to social disadvantages for one segment of the population.

It seems, however, Ms. Smith does not wish to publicly acknowledge the toned-down word -- that is, the government "should" implement conscience rights. The party's 2010 policy handbook says a Wildrose government "will implement legislation protecting the conscience rights of health care professionals." But the 2012 Wildrose platform has that one different word on the subject, which hopefully should put tarnish on a carefully polished campaign.

Conscience rights are hotly disputed in other jurisdictions, as they tend to involve medical professionals refusing to perform or counsel for procedures they have moral objections to. These procedures include abortion, sterilization or other forms of birth control. There have also been civil commissioners opting out of marrying same-sex couples. Just last year, Saskatchewan’s Court of Appeal upheld the principle that those sworn to carry out public duties cannot unilaterally pick and choose parts of their job they will perform. That case involved a marriage commissioner refusing to perform same-sex marriages because of his religious beliefs.

What’s disturbing is that since this story broke in the mainstream press, there are comments popping up on media boards and blogs suggesting those who question or oppose such policies should have more respect for politicians holding religious values. Ignorance is bliss, I gather.

Most reasonable people, I suggest, don’t have a problem with politicians of faith. Rather, they have a problem with those seeming to believe that their religion gives them greater moral authority than those who don’t share their particular set of values and beliefs. It should not – and does not – under Canada’s Charter. I would further suggest that most reasonable people would draw the line at politicians using their belief system to justify casting out those who don’t share their bigoted beliefs. Democratic policies are supposed to be inclusive and government is supposed to govern for all people.

Are we now so far distanced from the past that we have forgotten the mistakes of the past? I would hope not. But asked repeatedly about her stance, Ms. Smith dodged reporters' questions, stating only, "I'll tell you where I stand… I am fundamentally a populist… I fundamentally believe that Albertans should decide the direction of the province."

That is not good enough, Ms. Smith. It is blatant deflection on an exceedingly important question, a question of state-sanctioned discriminatory policy you have previously gone on record endorsing. It’s a simple question, so answer it and allow the people to decide if this is what is truly wanted for the future of Alberta.

Echoes of theocracy in a Canadian sub-culture

Part three in a series

Updated to include comments from a member of the Alberta Teachers Association

by Bobbie Saga

A theo-conservative sub-culture – spawned by our southern neighbours, financed by well-heeled devotees, fuelled by teary-eyed, indefatigable devotion and linked through heavyweight think tanks, evangelical churches, charter schools and the Internet – has flourished largely ignored or unnoticed within Canada for the better part of 30 years.

For the already initiated and enlightened, whose numbers have dramatically increased, they believe they are called on to be saviors for a higher purpose – "called to be salt and light in all the world."

Their aim is "God blessed" reformation of Canada’s multicultural and civil nature, an anachronism of driving Canada back into the Biblical dark ages with an exclusionary theo-conservative agenda running counter to our inclusive culture.

And they’ve taken aim for over a quarter of a century by parachuting people into key positions within the Canadian establishment, elevating those showing promise and adherence to a theocratic worldview by giving both financial and other support in the background. Many of the chosen have a cult-like following few truly understand.

Theocracy echoes throughout this sub-culture’s chamber. At the same time, carefully crafted and controlled messaging – designed to be palatable to the less enlightened, designed to garner public support, designed to score political points – is unquestionably picked up by the mainstream press that has an affection for shifting views, votes and ultimately, public policy.

Canada’s corporate media uncritically echoes the messages of this sub-culture to the masses, chanting its requiems and chattering about a families first, libertarian agenda – aiding and abetting in a process to capture and maintain political power.

But for those paying close attention, they knew something was up dating back to the mid-1980s when politics took on a new and decidedly different tone, when people like Stockwell Day began arriving on the political scene with his creationist tendencies.

Shortly thereafter, self-righteous silhouettes emerged more prominently on Alberta’s landscape with the most extreme elements of the movement showing a penchant for intelligent design.

It all seems so strikingly familiar with attempts made to influence both education and human rights policies during Alberta’s provincial election today and under the guise of standing up for human rights. And it’s déjà vu with politicians such as Rob Anderson, Wildrose Party education critic, pandering to this same and much expanded constituency, while counting on the media not to take notice of the repackaged rhetoric.

Back to the light

But long forgotten stories relegated to the annals of history and buried in morgues of Alberta’s press chronicle events that influenced policies and ultimately threatened to split Alberta’s mighty PC party.

One such story took place in March of 1994, a time when book banning was alive and well, when one defender of morality stepped from the shadows of the Legislature’s back-benches to denounce John Steinbeck’s Of Mice and Men.

Victor Doerksen, former Tory MLA for Red Deer South, stepped into the spotlight brandishing the book as one example of literary works he wanted removed from schools in the province. Doerksen referred to the passage "…too goddammed lazy…" as offensive, and said the book contained 197 other profanities – yes, someone actually went through it and counted! He also introduced a petition from 881 Albertans wanting all educational literature intolerant of religion removed from curricula and school library shelves.

Following a brief encounter with disbelief, it was pointed out that John Stienbeck won the 1962 Nobel Prize for literature and that in the presentation address, Anders Osterling, the then Permanent Secretary of the Swedish Academy, called Of Mice and Men "the little masterpiece". Osterling went on to praise Steinbeck, "With your most distinctive works you have become a teacher of goodwill and charity, a defender of human values, which can be said to correspond to the proper idea of the Nobel Prize."

Shortly thereafter, Doerksen admitted he had never read Of Mice and Men and within a week he was removed from two government education committees.

Yet playing in the shadows of education debates was another important issue: sexual orientation as protected grounds for discrimination. Canada repatriated its Constitution over a decade earlier that included the Charter of Rights and Freedoms. And following its 1982 implementation, federal, provincial and territorial governments brought in human rights legislation mirroring the Charter that today still govern human rights complaints and the processes throughout Canada. But Alberta, unlike other jurisdictions, refused steadfastly to include sexual orientation in its human rights legislation. It was, after all, a time when the once fringe of the PC Party and gay bashing articles in the Alberta Report held sway. The Alberta Report was published by current Wildrose candidate Link Byfield.

Then in 1991, Delwin Vriend, a lab coordinator at Edmonton’s King’s College, was fired from his job because of his sexual orientation. Vriend, when it was disclosed to his employer that he was in a same-sex relationship, displayed a "lifestyle choice" deemed incompatible with a newly created statement of religious belief adopted by the private religious college.

Yet when Vriend attempted to file a discrimination complaint with Alberta’s Human Rights Commission, he was refused on the grounds that sexual orientation was not protected grounds under the province's human rights code.

 Vriend sued the Government of Alberta and its Human Rights Commission, seeking a declaration from the Alberta Court of Queen’s Bench, arguing the omission breached Section 15 of the Charter. But when the Court of Queen's Bench found in his favour, the Government of Alberta, under political pressure from religious groups, appealed the decision. Then the Alberta Court of Appeal overturned the trial decision, and that decision was, in turn, appealed to the Supreme Court, which ruled in Vriend’s favour. The SCC ruled (excerpt):


 Far from being rationally connected to the objective of the impugned provisions, the exclusion of sexual orientation from the Act is antithetical to that goal. With respect to minimal impairment, the Alberta government has failed to demonstrate that it had a reasonable basis for excluding sexual orientation from the IRPA [Individual’s Rights Protection Act]. Gay men and lesbians do not have any, much less equal, protection against discrimination on the basis of sexual orientation under the IRPA. The exclusion constitutes total, not minimal, impairment of the Charter guarantee of equality. Finally, since the Alberta government has failed to demonstrate any salutary effect of the exclusion in promoting and protecting human rights, there is no proportionality between the attainment of the legislative goal and the infringement of the appellants’ equality rights.
It did not take any time following the April 2, 1998 ruling before the Alberta Government announced it was considering invoking the Constitution’s notwithstanding clause to opt out of the ruling. A backroom brawl ensued principally between Ralph Klein duking it out with Stockwell Day, who was pushing for usage of the notwithstanding clause.

But in the wake of the government’s announcement, a group calling itself the Alberta Human Rights Coalition that supported the SCC ruling went into high gear lobbying every single MLA in the province, plus staged a celebration on the steps of McDougall Centre in Calgary in an effort to put a spotlight on the issue. Religious groups, however, pushed back, taking out full page ads in most of Alberta’s daily newspapers that were deemed by some legal experts to be "one word shy of hate speech" against gays and lesbians. Their publication touched off a bitter firestorm of controversy that soon led to an announcement by the government that it was allowing the SCC ruling to stand. Klein had won the brawl, but paid a political price.

The case was not against King's College, and Vriend never pursued a human rights complaint against his former employer. The case strictly involved whether provincial Human Rights Commissions could, under provincial legislation, investigate claims on the basis of sexual orientation. Nor did the ruling set any legal precedent for the resolution of such claims. That was left to the Human Rights Commissions, independent from government bodies mandated by legislation and supported by case law to mediate resolution to thousands of disputes arising each year throughout Canada (more on that in my next post).

Vriend vs. Alberta still stands as one of the most important rulings by the Supreme Court with the decision since being used to argue provincial cases against bans on same-sex marriage. In addition, the decision has greater ramifications within Canadian law outside of sexual orientation issues. It helped shape legal precedent concerning provincial and federal government relationships as well as labour and other civil rights and constitutional laws.

Old arguments die hard

As far as the issues being raised in Alberta’s current education debate over the now defunct Bill 2, it is not freedom of religion itself that is at issue but whether exclusionary forms of education can or should be in the bailiwick of publicly funded education. The Supreme Court says no, but both home-schooling parents and candidates from the Wildrose Party say yes as does Bill 44 that was brought in by the old guard of Alberta's PC Party who have mostly jumped ship or changed political allegiance.

The groups wading into the debate cut and paste from each other, filling boards and blogs alike with their self-regarding opinions that are smugly self-righteous and tinged in no small way by self-interest. All are endorsing one another’s deeply flawed conclusions.

And as Jonathan Teghtmeyer from the Alberta Teachers Association points out, the arguments being put forward by those representing home-schoolers are "illogical."

"Many home-schooling parents suggest that the lines between class time and home time are blurred, and since their home is defined (according to the act) as a school, any conversation in their home would be subject to the Alberta Human Rights Act and, under Bill 2, discussions around the kitchen table could be governed by legislation. Some believe that Bill 2 would, for example, prevent parents from teaching their particular views on homosexuality or abortion," Teghtmeyer said.

"These complaints are unfounded and ridiculous," he continued.

"The Canadian Charter of Rights and Freedoms is part of our constitution and applies to legislation and programs of study regardless of whether a provincial education act refers to it or not. As for the Alberta Human Rights Act, it also expressly applies to all legislation in Alberta."