BenchPress - Vol 40-5 - LawNow Magazine

BenchPress – Vol 40-5

1. Miscarriage as a Workplace Disability

The Ontario Human Rights Tribunal has issued a decision stating that a miscarriage can be a disability.  Winnie Mou was dismissed from her position after failing to meet work targets.  She had missed three weeks of work due to a deep tissue injury, and several months later had a miscarriage and fell into a deep depression.  She alleged workplace discrimination on the basis of disability.  Her employer sought to dismiss her claim, arguing that in order for an injury or illness to constitute a disability, there must be an aspect of permanence and persistence to the condition.  Adjudicator Jennifer Scott disagreed, writing: “I also find that the applicant’s miscarriage is a disability…It…is not a common ailment and it is certainly not transitory. It is clear from applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.”  She ruled that Ms Mou had established a disability under the Ontario Human Rights Code.

Wenying (Winnie) Mou v. MHPM Project Leaders, 2016 HRTO 327 (CanLII)

2. Mandatory Minimums are Cruel and Unusual

The Supreme Court of Canada recently struck down a mandatory minimum sentence for repeat drug traffickers.  The case involved a young man who had a prior drug offence conviction within ten years of his second offence and was addicted to crack, heroin and crystal meth.  He was living in downtown East Vancouver and sold small amounts of drugs to his friends to support his addiction.  Justice Beverley McLachlin wrote: “At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse and finds herself sentenced to a year in prison because of a single conviction for sharing marijuana in a social situation nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year”.  The Court found that the sentence violated s. 12 of the Charter of Rights, in that it was cruel and unusual punishment.      

  1. v. Lloyd, 2016 SCC 13 (CanLII)

3. Over Two-Hundred-Years-Old BC/Alberta Métis Settlement Applauds Supreme Court of Canada Decision

April 14, 2016 – Kelly Lake. “Today is a good day to be Métis”, pronounced Lyle Campbell Letendre, President of the Kelly Lake Métis Settlement Society. The Supreme Court of Canada has issued its decision in Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC12, acase which includes Métis and Non-Status Indians as within the Federal jurisdiction under s.91(24) Constitution Act 1982 (a.k.a. British North America Act 1867).

President Campbell Letendre said, “We are independent and equal with First Nations and the Inuit, and as of today, we are fully recognized. The history in this province for us has been one of the most discriminating things you have seen against Aboriginal peoples in BC.”

Campbell Letendre added, “All these years we have had nothing but discrimination and no consultation, but today all of that has changed. I now have invitations to engage from Indigenous and Northern Affairs Canada Minister Carolyn Bennett, to pipeline companies, energy developers and others.”

In May 2015, the Kelly Lake Métis Settlement society put the government and other parties on notice when they filed in the New Westminster, BC Supreme Court, a claim concerning their Aboriginal rights and title, which includes relief for the discrimination they have endured. Part of the claim is for an injunction against future infrastructure development without their free, prior and informed consent.

The Daniels decision was a unanimous decision of the Supreme Court of Canada. The Court ruled that, “The fact that a group is a distinct people with a unique identity and history whose member’s self identify as separate from Indians, is not a bar to inclusion with s.91(24)”.  Likewise, President Letendre Campbell said, “The Kelly Lake Métis are only represented by the Kelly Lake Métis Settlement Society, that is why our Notice of Civil Claim was filed on behalf of all Otipemisiwak Ayesinowak which means, we are half breeds that own ourselves”.

President Campbell Letendre added, “We always hunted in BC and Alberta. We have never given up any rights to anybody in Canada, provincially or federally”. Under the Powley case and Tsilhqot’n case, our territorial rights should also be established.






Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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