Past Cases
Until recently, all of West Coast LEAF’s work in test cases and in interventions have been done under the name of LEAF. The following cases are ones that West Coast LEAF has had a significant role in developing, resourceing and managing.
Smith v. Funk; Amos v. Virk: Disclosure of Records
R. v. Demers: Access to Abortion Services
Blencoe v. B.C. Human Rights Commission: Sexual Harassment
B.C.G.E.U. v. P.S.E.R.C. (aka the “Firefighter’s” Case or Meorin)
R. v. Lewis: Access to Abortion Services
Eldridge et al. v. A.G. B.C. et al.: Public Funding of Sign Language Interpretation During Medical Care
O’Connor: Disclosure in Sexual Assault Complaints
Godwin: Pregnancy Benefits
Norberg v. Wynrib: Sexual Abuse of Psychiatric Patient
Sullivan and LeMay: The Midwives Case
Smith v. Funk; Amos v. Virk
Disclosure of Records
This case was heard in August 2003 and LEAF was granted leave to intervene in this case.
West Coast LEAF’s Legal Committee recommended that LEAF intervene in Smith v Funk, an Appeal to the BC Supreme Court addressing disclosure of documents in civil cases that may have an adverse impact on women, poor women and disabled women. Smith v Funk is proceeding to Court of Appeal chambers with a similar case, Amos v Virk.
This case provided an important opportunity to address the meaning of relevance and privacy in the disclosure of documents from third parties. The case was of particular interest because of the impact that the disclosure application has on women, particularly poor and/or disabled who have disproportionate interactions with the Ministry of Social Services, other government officials and social service agencies. If ICBC won, poor women would be forced to disclose potentially embarrassing and irrelevant information to ICBC and other institutional and individuals in civil cases.
The issue had elements of intersectionality - gender and poverty and disability. It was also of particular relevance to women's equality and access to justice because the fear of some ICBC adjuster reading about a woman’s therapeutic abortion or sexual assault history may prevent women from seeking damages in personal injury matters. It was essentially the civil side of R v Mills.
The court found that the points raised by all parties were moot because the documents in question had since been made available to the plaintiffs. The appeals were dismissed. The implication of this outcome is that the law remains vague on the issue of disclosure of documents, therefore, women and other marginalized groups will continue to be vulnerable to having their privacy violated and used to prevent them from accessing their equality rights.
Counsel for LEAF was Susan Griffin of Fraser Milne and Casgrain.
R. v. Demers
Access to Abortion Services
LEAF was granted official intervener status in the Demers case, which was heard by the BC Court of Appeal in December 2002. This case was a rebirth of R v Lewis, 1996 (detailed below) and addressed the same issues regarding B.C.’s ‘bubble zone’ legislation (Access to Abortion Services Act) around abortion clinics. West Coast LEAF worked in coalition with the Elizabeth Bagshaw Clinic, Pro-Choice Action Network, BC Women’s Hospital and Everywoman’s Health Centre. A decision was rendered in January 2003. Although the court did not accept all our arguments, the legislation was upheld. Since then, Mr. Demers has filed for leave to appeal to the Supreme Court of Canada. That leave was denied, but the issues raised have been raised again in the Watson/Spratt case.
Counsel for LEAF were Nitya Iyer and Andrea Zwack.
Blencoe v. B.C. Human Rights Commission
Sexual Harassment
In August of 1995 two women filed complaints against Robin Blencoe and the Provincial Crown under the Human Rights Act alleging that Mr. Blencoe, a senior civil servant, discriminated against them on the basis of sexual harassment. The investigation process was completed in July 1997 and the matter was scheduled for hearings on March 1998. In November 1997 Mr. Blencoe applied for a stay of proceedings in the Supreme Court of British Columbia on the basis of unreasonable delay resulting in serious prejudice to him. His application was dismissed, in part, on the basis that Section 7 of the Charter did not apply to proceedings under the Human Rights Act. Mr. Blencoe appealed. On May 11th, 1998, the Court of Appeal directed that the proceedings under the Human Rights Act be stayed. Chief Justice McEachern, writing for the majority, held that Section 7 of the Charter does apply to proceedings under the Act. The Court stated that Section 7, in the context of human rights proceedings, guaranteed a respondents right to have a case against him or her heard within a reasonable time, so as to minimize the negative impacts to his or her privacy and dignity. The Chief Justice did not address the pressing issues arising from sexual harassment and its adverse effect on women’s equality in the workplace. The complainants filed an appeal to the Supreme Court of Canada.
LEAF was granted leave to intervene at the Supreme Court of Canada. The Supreme Court of Canada heard the Blencoe case on January 24th, 2000. LEAF argued, inter alia, that the Court ought to take a cautious, clear analysis in determining whether human rights proceedings engage Section 7 rights of the complainants are critical to this analysis. As set out in LEAF’s factum “the interpretation and application of Section 7 Charter rights to human rights proceedings has significant implications for the ability of women and other equality seekers to have their human rights complaints investigated and adjudicated.”
On October 5, 2000, the Supreme Court issued their decision. The Court held that the stay in the proceedings was improper, and the complaints should proceed. In its analysis of section 7 of the Charter, the Court concluded that neither Blencoe’s right to “life” nor “security of the person” was affected by the delay that had occurred. This was in important decision because it balances the rights of the accused with those of the complainant and sends a message that sexual harassment complaints are deserving of prompt and serious consideration.
The Court criticized the Human Rights Commission’s handling of the complaints, expressing concern with the apparent lack of efficiency and concern of the Commission in dealing expeditiously with complaints.
Counsel for LEAF at the Supreme Court of Canada were Jennifer Conkie and Dianne Pothier.
B.C.G.E.U. v. P.S.E.R.C.
aka the “Firefighter’s” Case or Meorin
In the spring of 1998, a coalition including LEAF, Canadian Labour Congress (CLC) and the DisAbled Women’s Network of Canada (DAWN), was granted leave to intervene in this case before the Supreme Court of Canada.
This case involves a woman, Tawney Meiorin, who worked as an initial attack forest firefighter for two years and was laid off from her position after she failed to pass a running portion of a physical fitness test. She had passed three other portions of the physical fitness test. The running test required Ms. Meiorin to run 2.5 kilometers in 11 minutes. She failed the test four times and her times ranged between 8 and 49 seconds slower than the requirement. Evidence at the hearing showed that Ms. Meiorin had safely and efficiently performed her job and was considered by her supervisor to be a capable employee whom he did not wish to lose.
This case was first heard before a labour arbitrator. Evidence at the hearing showed that women had a much lower rate of passing the running test as compared with men due to physiological differences in aerobic capacity between men and women. The arbitrator found that women as a group were adversely affected by the aerobic capacity standard set for the test even though the test was neutral on its face. He declared that Ms. Meiorin suffered adverse-effect discrimination on the basis of sex, and that the employer failed to meet its duty to accommodate her to the point of undue hardship as they had not shown that the aerobic capacity standard was necessary for the safe and efficient performance of the work.
The B.C.C.A. overturned the arbitrator’s decision and accepted the employer’s arguments that if there is individualized testing, there cannot be discrimination. The court also stated that accommodation to correct adverse effect discrimination could amount to “reverse/adverse effect discrimination”.
This is a very significant case for women’s equality rights as it gives LEAF and its coalition partners an opportunity to elaborate on the key human rights concepts of adverse-effect discrimination and the duty to accommodate, as well as to argue against the idea of “reverse discrimination”. Importantly, this will be the first time that the S.C.C. will consider the duty to accommodate in a sex-based discrimination case. The implications of the court’s decision are significant for creating substantive equality for women in the workplace, and are of particular importance to women with disabilities. The very high rate of unemployment among women with disabilities is evidence of the inability of workplaces to accommodate the needs of these women. The legal concept of adverse-effect discrimination and the duty to accommodate also have broad implications outside of the workplace context.
LEAF and its coalition partners filed their written argument (factum) at the Supreme Court of Canada in early October 1998. The case was held in February 1999. The court reserved its decision.
Counsel for LEAF at the Supreme Court of Canada was Melina Buckley and Kate Hughes.
R. v. Lewis
Access to Abortion Services
A coalition including LEAF, the Elizabeth Bagshaw Society, Every Woman's Health Centre Society (1988), the B.C. Women's C.A.R.E. Program, and the B.C. Coalition for Abortion Clinics was granted leave to intervene in the Lewis appeal on April 25, 1996. The scope of the coalition's intervention was to make submissions under section 1 of the Charter as to why the Access to Abortion Services Act, which creates access zones around abortion clinics and the homes of abortion service providers, is constitutionally valid.
The coalition was given only one week to file its factum. After a week of intense work by counsel Nitya Iyer and Lindsay Lyster, West Coast LEAF Legal Committee members, and Katherine Hardie and Judy Parrack from P.I.A.C., the factum was filed on May 2, 1996.
Subsequently, an application for leave to intervene was filed by another coalition of groups, representing a "pro-life" perspective (the "C.A.R.E. coalition"). This coalition was granted leave to intervene on May 7, 1996, and was permitted to make submissions as to whether the legislation violates the rights to freedom of religion, freedom of expression, freedom of association, and freedom of assembly under section 2 of the Charter, as well as whether the legislation is constitutionally justifiable under section 1. Given that this scope is broader than that initially sought and obtained by our coalition, we were permitted to file a supplementary factum on June 5, 1996.
Our arguments focus on how the legislation promotes the constitutional values of equality, dignity and privacy by seeking to ensure that access to abortion services is protected.
After one adjournment, the appeal commenced in B.C. Supreme Court before Madame Justice Saunders on June 25, 1996, and continued on July 9 and 10, 1996.
Oral argument focused on the coalition’s position that the Access to Abortion Services Act does not infringe the accused’s rights to freedom of association, assembly, and religion, and that the violation of the right to freedom of expression, which was admitted, is a reasonable limit under section 1 of the Charter given that the legislation protects the equality, privacy and security of the person interests of women seeking access to abortion services.
In a decision released October 8, 1996, Madame Justice Saunders adopted many of the Coalition’s arguments in upholding the Act. Justice Saunders found that while the legislation violated the rights of anti-abortion protesters to freedom of religion and conscience and freedom of expression under the Charter, the Act was justified as a reasonable limit on those rights. The court accepted the Coalition’s call to look at the anti-abortion activity in its broader context, and from the perspective of the women seeking access to abortion services. Justice Saunders found that “health care has a fundamental value in our society. A woman’s right to access health care without unnecessary loss of privacy and dignity is no more than the right of every Canadian to access health”. The Act was found to strike an appropriate balance between the rights of anti-abortion protesters, and the rights of women and abortion service providers to equality, privacy and security of the person.
West Coast LEAF, along with its coalition partners, had been preparing for an intervention at the B.C. Court of Appeal when we learned of the death of Maurice Lewis in September 1997. These preparations included research fundraising and the selection of counsel, Lindsay Lyster and Andera Zwack of Heenan Blaikie, after Nitya Iyer was appointed to the B.C. Human Rights Tribunal.
The Crown applied for, and received a stay of proceedings in the Lewis case in October 1997. West Coast LEAF, along with its coalition partners, is monitoring cases arising under the Act in the event that another constitutional challenge is heard at the appellate court level.
Counsel for LEAF at the B.C. Supreme Court were Nitya Iyer and Lindsay Lyster.
Eldridge et al. v. A.G. B.C. et al.
Public Funding of Sign Language Interpretation During Medical Care
At the request of LEAF National, one of West Coast LEAF's summer students prepared a case proposal in the above noted case. Eldridge concerns the issue of the availability of publicly funded sign language interpreters to deaf people in the course of receiving medical care. The plaintiffs in the case argue that the failure of B.C.'s medicare legislation to cover the costs of such interpretation amounts to discrimination. This argument had been unsuccessful so far before the B.C. Supreme Court and Court of Appeal.
The case was of interest to LEAF because it presents an important opportunity to have the Supreme Court develop its jurisprudence in the area of adverse-effects discrimination, as well as to address the intersection of inequalities experienced by deaf women.
LEAF and DAWN Canada were granted intervenor status in November 1996. West Coast LEAF members sat on the case subcommittee, and West Coast LEAF’s Legal Director assisted LEAF’s National Litigation Director in coordinating the case. The case was heard on April 24, 1997.
The Supreme Court released its decision in Eldridge in October 1997. The Court ruled that the failure of B.C.’s medical services legislation to provide funded sign language interpretation had an adverse impact on Deaf persons, and amounted to discrimination on the basis of disability. The Court also ruled that whenever a body carries out a government objective for which it is funded by the government, that body must conform to the Charter. In LEAF’s view, the case is an important victory, as it declares that governments must take measures to ensure that disadvantaged groups benefit equally from government services.
Counsel for LEAF at the Supreme Court of Canada were Jennifer Scott, Katherine Hardie and Judy Parrack.
O’Connor
Disclosure in Sexual Assault Complaints
In 1991, Bishop O'Connor was charged with rape and indecent assault of four aboriginal women at a residential school in Williams Lake, B.C.. During the pre-trial process, the judge ordered the disclosure of all records of therapists, counselors, psychologists and psychiatrists who had treated the complainants in relation to sexual assault or sexual abuse. In December 1992, proceedings were stayed in part because the trial judge did not have confidence that full disclosure had been made by the Crown. The Crown appealed.
On June 30, 1993, LEAF was successful in obtaining intervenor status before the B.C. Court of Appeal on behalf of a coalition including LEAF, the DisAbled Women's Network of Canada (D.A.W.N.), the Aboriginal Women's Council (an umbrella organization for 12 B.C. aboriginal women's organizations) and the Canadian Association of Sexual Assault Centres. The appeal was brought by the Crown from the stay of proceedings ordered at the trial of Bishop O'Connor. The Crown's appeal was heard September 16.
The issue addressed by LEAF on behalf of the coalition at the Court of Appeal focused on the scope of disclosure of sexual assault complainants' mental health records. The coalition argues that disclosure of therapists' records fails to take into account women's equality rights under the Canadian Charter of Rights and Freedoms.
On March 30, the Court of Appeal handed down its decision. The Court ruled that the evidence sought by Bishop O'Connor was not relevant either to an issue in the proceeding or to the competency of the complainants to give evidence. The decision on the law and process of disclosure was postponed because the issue was considered to be moot.
On May 16, 1994, the Court of Appeal rejected the pre-trial order that the complainants should provide defence counsel with all records concerning sexual assault kept by counselors, therapists, psychologists and psychiatrists. Although the coalition argued that complainants' medical records are never relevant in sexual assault cases, the Court held that in some instances this information may be admitted. However, the Court set out a strict two-stage procedure for determining when medical records can be disclosed and established guidelines for the application process.
This decision makes B.C. the only province in Canada with an authoritative and clear process for the disclosure of records. According to the decision, defendants will now be required to demonstrate that the records they seek are likely to contain information relevant to an issue at trial and that without them, their ability to make full answer and defence would be adversely affected.
Bishop O’Connor appealed the decision to the Supreme Court of Canada and LEAF intervened, again in coalition with DAWN Canada, the Aboriginal Women’s Council, and C.A.S.A.C.. The case was heard on February 1, 1995.
On December 14, 1995, the Supreme Court of Canada dismissed Bishop O’Connor’s appeal. The court established a two step process for determining the admissibility of complainants’ therapeutic records. The trial judge must balance the privacy interests of complainants and third parties with the accused’s right to a fair trial. In response to the Supreme Court of Canada decision, the Federal Government amended the Criminal Code (Bill C-46) to set out a procedure for disclosure of personal records, including medical records, in all sexual offence cases.
LEAF, including members of West Coast LEAF, was very much involved in the Department of Justice consultations leading up to the introduction of Bill C-46. Bill C-46 became law on May 12, 1997, and it specifically requires a court to take into account women’s right to privacy and equality before the law.
Counsel for LEAF at the B.C. Court of Appeal were Fran Watters and Gail Dickson. LEAF counsel at the Supreme Court of Canada were Sharon McIvor and Elizabeth Shilton.
Godwin
Pregnancy Benefits
In British Columbia working women are routinely denied disability benefits during pregnancy or maternity leave. LEAF took one of the first B.C. challenges to stop this lingering form of sex discrimination in employment.
LEAF filed a human rights complaint for Barbara Godwin, a hospital worker in the Lower Mainland. Ms. Godwin's situation is typical. Her employee disability benefit plan excludes women on maternity leave. Like most B.C. women, Ms. Godwin had to live on Unemployment Insurance benefits--always lower than employee disability benefits--when she was unable to work during her maternity leave.
LEAF's position was that pregnancy, childbirth and recovery are legitimate medical reasons for absence from work. Excluding women from disability benefits because their inability to work is related to pregnancy is sex discrimination.
The B.C. Human Rights Act outlaws pregnancy discrimination in hiring and firing, but allows employers to discriminate when it comes to "employee insurance plans".
Late in 1992, Ms. Godwin accepted an offer to settle from her employer. While the settlement fully compensated Ms. Godwin for her losses, the discriminatory provision in the Act remains.
Instead of taking another test case, West Coast LEAF has decided to try to persuade government to amend the legislation.
Counsel for LEAF was Kathryn Neilson, Q.C.
Norberg v. Wynrib
Sexual Abuse of Psychiatric Patient
Laura Norberg of Williams Lake, B.C. had been unsuccessful at trial and on appeal in her bid for compensation against a doctor who, knowing she was dependent on prescription drugs, gave her prescriptions in exchange for sexual services. She sued for damages for assault, breach of duty and negligence.
LEAF intervened in Ms. Norberg's appeal to the Supreme Court of Canada. In mid-1992, the Court found in favour of Ms. Norberg, awarding her substantial damages. Unlike the B.C. courts, the Supreme Court of Canada recognized that Ms. Norberg's "consent" to the sexual activity was vitiated by her vulnerability due to drug dependency and her relative powerlessness in the relationship with Dr. Wynrib.
Counsel for LEAF was N. Victoria Gray.
Sullivan and LeMay
The Midwives Case
In 1991, LEAF intervened in this Supreme Court of Canada appeal by two midwives who were convicted of criminal negligence causing bodily harm to a birthing mother due to the death of the unborn child. At the trial level, they were convicted of criminal negligence causing death to a person (the fetus). However, on appeal, the B.C. Court of Appeal substituted a conviction of criminal negligence causing bodily harm to the mother.
This case raised the issue of the legal status of the fetus. LEAF's argument sought to both advance women's reproductive freedom and focus on the woman's relationship to her fetus, rather than placing the woman's and her fetus' rights in opposition. In LEAF's view, the harm in this case was to the mother as the fetus cannot be treated as legally autonomous from her as it is "in and of the mother" until fully born.
The Supreme Court found that the fetus was not a person for the purposes of the Criminal Code offence of criminal negligence causing death to a person and therefore upheld the midwives' acquittal on that charge.
Because an appeal had not been entered by the Crown to the original acquittal on criminal negligence causing bodily harm to the mother, the Court found that it was not open to the Court of Appeal to enter a conviction on that charge and acquitted the midwives of that charge as well.
LEAF counsel on the case were Lynn Smith and Mary Eberts.
