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Recently, anti-racism has received extensive media coverage. Instead of addressing what can be done about it, there has been much discussion about whether racism—particularly systemic racism—exists in Canada, and apparent confusion about the meaning of important terms. For example, on June 9, 2020, CBC reported that Alberta Deputy RCMP Commissioner Curtis Zablocki denied there was systemic racism in policing in Canada. RCMP Commissioner Brenda Lucki said that Deputy RCMP Commissioner Zablocki had indicated he misunderstood the meaning of “systemic racism”. In order to proceed to actually address racism, it is very important that everyone is very clear about terminology.

Racism, racial discrimination and even systemic racism are often used interchangeably, leading to confusion and misinformation. Provincial, territorial and federal legislation prohibit racial discrimination. The Canadian Charter of Rights and Freedoms (Charter) prohibits racial discrimination by the government. There are limited circumstances under this legislation where racial discrimination may be justified by the government or the respondent.

Racism is a combination of racial prejudice (or discrimination) plus power.“Race” is one of several grounds covered under both human rights legislation and s. 15(1) of the Charter. Walter Tarnopolsky defined race for the purposes of human rights law (as quoted in Blake v Loconte (1980), 1 CHRRD/74 at D/78 (Ont. Bd. of Inquiry)) as:

… only one [Board of Inquiry] has attempted to provide a definition of the word ‘race’ and this was the 1976 Board of Inquiry under the Alberta Individual’s Rights Protection Act [S.A. 1972, c. 2, in] the case of Ali v. Such… The Board quoted from Webster’s New World Dictionary (2d. ed.) and Black’s Law Dictionary (rev. 4th. ed) and thereupon concluded that ‘race indicates broad or great divisions between mankind, and each of the definitions indicates that the races have physical peculiarities that distinguish one race from the other’.

Legislation often does not define “discrimination”, but leading cases from the Supreme Court of Canada (SCC) provide guidance. Under human rights law, the leading case is Moore v British Columbia (Education), 2012 SCC 61 (Moore). Moore provides:

[33] … [T]o demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.

Under s. 15(1) of the Charter, the SCC summarizes the law on discrimination in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17:

[25] … The test for a prima facie violation of s. 15 proceeds in two stages: Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds? If so, does the law impose ‘burdens or den[y] a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating … disadvantage’ (citation omitted).

Intention is not relevant in discrimination; we do not consider whether a person intended to discriminate. It is the impact of the discrimination that we take into account.

In the case of Canada and United States, white people currently possess socially-imbued power and this is reflected in our institutions.The legal tests for “discrimination” and “race” indicate that a person faces racial discrimination any time a person experiences an adverse impact (e.g. caused by the operation of law under the Charter; or in areas such as employment, tenancy or public services under human rights law) because of their race. This applies to white people, persons of colour, black persons and Indigenous people. For example, if a prospective employer did not hire an otherwise qualified person based on their race, that would be racial discrimination. This discrimination is illegal unless the employer can reasonably justify it. In short, it is possible for a white person, an Indigenous person or a person of colour to experience racial discrimination.

The law addresses behaviour and not attitudes. While racial discrimination is an action, it is often caused by racial prejudice, which is an attitude. According to the Calgary Anti-Racism Education (CARED) website:

Assumptions and stereotypes about white people are examples of racial prejudice, not racism. Racial prejudice refers to a set of discriminatory or derogatory attitudes based on assumptions deriving from perceptions about race and/or skin colour. Thus, racial prejudice can indeed be directed at white people (e.g., white people can’t dance) but is not considered racism because of the systemic relationship of power.

Thus, racism is not the same as racial discrimination. Although people sometimes refer to racial discrimination as “racism”, this creates confusion and is not correct. Racism is a combination of racial prejudice (or discrimination) plus power. By “power”, we are talking about who is recognized and accepted as having power in society as a whole. In this context, the power is socially-imbued but not necessarily earned. For example, in Canada and the United States, it is generally accepted that heterosexual white middle-aged males are natural leaders. We can see this by looking at various institutions – such as governments, legislatures, large corporations, justice and other institutions – to see who is at the head (or who has the power).

CARED further explains “power” as follows:

By power we mean: the authority granted through social structures and conventions—possibly supported by force or the threat of force—and access to means of communications and resources, to reinforce racial prejudice, regardless of the falsity of the underlying prejudiced assumption. Basically, all power is relational, and the different relationships either reinforce or disrupt one another.

Systemic racism and institutional racism are subsets of racism. Frances Henry and Carol Tator define racism in The Colour of Democracy 4^th ed (Toronto: Nelson Education, 2010) at p 383 as:

A system in which one group of people exercises power over another on the basis of skin colour; an implicit or explicit set of beliefs, erroneous assumptions, and actions based on an ideology of the inherent superiority of one racial group over another, and evident in organizational or institutional structures and programs as well as in individual thought or behaviour patterns.

In order to proceed to actually address racism, it is very important that everyone is very clear about terminology.In the case of Canada and United States, white people currently possess socially-imbued power and this is reflected in our institutions. The Centre for Race and Culture talks about systemic racism in Canadian society as follows:

A system of power and violence that structures opportunity and assigns value based on the social construct of race where privilege is afforded to whiteness. A system that unfairly disadvantages Black, People of Colour and Indigenous Communities while subsequently unfairly advantaging communities and individuals embraced by whiteness.

Another confusing term is being incorrectly used interchangeably with systemic racism—systematic racism. These two terms are not the same. Josh Burnoff provides the following explanation:

Systematic racism is a set of practices that discriminate on the basis of race. Systemic racism is a system that has racism inherent in how it operates.

Systematic racism is relatively easy to fix, if you care to try. Systemic racism requires a deeper level of thinking. I also think it demands including a racially diverse set of decision makers, because a diverse set of people can more easily identify racism in the systems that include racism within it, whether that racism is intentional or not.

Why is it very important to be clear? When a white person says that they have experienced racism, this is not possible in Canada because white people currently possess socially-imbued power. However, they may well have experienced racial discrimination and can obtain a legal remedy in some circumstances. For more in-depth information on racism and racial discrimination, please visit CARED.

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Generally, when talking about the situation in Canada, the emphasis is on the prevalence of systemic discrimination —policies or practices that are part of an organization, which perpetuate disadvantage. This is pervasive in Canada and difficult to address because it is reinforced by acceptance as the “normal” way of doing things. However, while complex systemic discrimination continues to exist, recently there are numerous overt examples of discrimination against racialized minorities in Canada. In some cases, the behaviour rises to the level of criminal assault or hate crimes. It seems as though fear and ignorance have caused some people to act out on their racist attitudes.

CTV News reported on April 27, 2020 that a poll carried out by Corbett Communications revealed that 14 per cent of respondents in Toronto, Montreal and Vancouver either “believed that all Chinese or Asian people carry the coronavirus (four per cent) or were uncertain about that (10 per cent).” In the same article, Susan Eng, director for the Chinese Canadian National Council of Social Justice, said that: “With results like this, it is not surprising that we are seeing a growing increase in anti-Asian racism, likely provoked by COVID-19 fears and ignorance, but no less threatening for that.” The poll also found that one in eight respondents were aware of racist incidents in their neighbourhood since the beginning of the COVID-19 pandemic.

There have been several examples of crimes against people of Asian descent across Canada. Vancouver police are investigating an attack on March 13, 2020 against a 92-year-old man as a hate crime. The Edmonton Police Service reports that there have been several incidents of hate-related graffiti reported in Edmonton since March 17. On April 29, 2020, Marichu Antonio of Calgary’s Action Dignity reported that online expressions of hatred towards newcomers who worked at Cargill Meat Packing Plant has resulted in newcomers being turned away from services such as banks and grocery stores. There are almost daily reports of racist incidents across Canada.

… recently there are numerous overt examples of discrimination against racialized minorities in Canada.Several prominent Canadians and world figures have commented on this crisis. United Nations Secretary-General António Guterres pointed out that the world is facing “the biggest international crisis in generations”, stressing that human rights “cannot be an afterthought”. The report states that “the virus is the threat, not the people, and emphasized that any emergency and security measures be temporary, proportional and aimed at protecting individuals.”

Mr. Guterres added that:

We see the disproportionate effects on certain communities, the rise of hate speech, the targeting of vulnerable groups, and the risks of heavy-handed security responses undermining the health response.

On April 8, 2020, Marie-Claude Landry, Chief Commissioner of the Canadian Human Rights Commission, issued the following statement:

The Canadian Human Rights Commission is deeply concerned by the rise of racism across Canada since the start of the COVID-19 pandemic.

Minority groups, in particular people of Asian origin, have been the victims of racist taunts, threats and intimidation in public and online, and physical violence. This is both an issue of public safety and fundamental human rights. No one should feel threatened or unwelcome because of the colour of their skin or where they are from.

Racism and xenophobia are also contributing to misinformation during a global health crisis. Viruses do not have borders. Viruses do not discriminate. People do.

Flattening the curve and slowing the spread of COVID-19 will take cooperation, solidarity and unity. As a country built on diversity, freedom and inclusion, we cannot let racism, intolerance and inequality undermine our peace and prosperity.

We are not safe unless we are all safe.

Hopefully, the majority of us who are deeply troubled by this will take this opportunity to get involved in some way in the human rights movement.On May 5, 2020, Michael Gottheil, Chief of the Commission and Tribunals at the Alberta Human Rights Commission, released a statement:

The COVID-19 pandemic has impacted all our lives in many ways. Unfortunately, it has led to an increase in racism and discrimination towards certain groups of Canadians. Since the beginning of this crisis, minority groups in Alberta, especially people of Asian descent, have been the targets of racist comments, threats, and intimidation.

Even though it may be human nature to want to assign blame or lash out in difficult times, we must be vigilant against xenophobia. To fight this pandemic, we need to look after one another by reaching out to our fellow Albertans and showing compassion, care, and consideration.

… We know that racism and discrimination will not stop when this pandemic ends, and may even worsen for some within our communities. Now, more than ever, Albertans and Canadians need to come together as one to stand up to hate. As we begin to ease restrictions and gradually move toward recovery, it is crucial that all spaces are free from hate, racism, and xenophobia, and that all Albertans feel safe.

There are many individuals and groups taking steps to address the situation. Chief Commissioner Michael Gottheil notes that ACT2endracism recently developed the Covid-19 Anti-Racism Incident Reporting Centre. Individuals can report hateful incidents in multiple languages, either on-line or by text messaging.

The Tyee also listed five steps on April 10 that allies can use to address the current crisis and the long-term implications of racism.

It is unfortunate that it often takes blatantly offensive events to draw attention to the unpleasant and illegal actions resulting from racial discrimination and racism. Hopefully, the majority of us who are deeply troubled by this will take this opportunity to get involved in some way in the human rights movement.

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Mahatma Ghandi once said: “A nation’s greatness is measured by how it treats its weakest members.” Canada has used solitary confinement for prisoners for decades. In the past several years, solitary confinement has been the subject of criticism from civil libertarians and mental health advocates.

Usually, solitary confinement involves isolating inmates in a small cell without human contact for 22 hours per day. Often called “administrative segregation”, solitary confinement has been the subject of increased scrutiny because of suicides and mental health issues suffered by prisoners who may be held for years in isolation. In A Sourcebook on Solitary Confinement, Dr. Sharon Shalev (2008), a leading international authority on solitary confinement, states that between one-third and 90% of prisoners experience some negative impacts of long-term solitary confinement. The symptoms may include insomnia, confusion, feelings of hopelessness and despair, distorted perceptions and hallucinations.

For over 20 years, the Correctional Investigator has criticized the overuse of solitary confinement in Canada. For example, see the Annual Report of the Office of the Correctional Investigator 2014-2015 (Annual Report, 2014-2015). The Correctional Investigator notes that solitary confinement is overused particularly for women with mental health issues, and for Indigenous and Black inmates.

The practice of administrative segregation is now called “Structured Intervention”.
In 1992, the Corrections and Conditional Release Act, SC 1992, c 20 (CCRA), originally provided procedural safeguards for administrative segregation in sections 31 to 37. These may be summarized as:

• Release from administrative segregation at the earliest appropriate time.
• Reasonable alternatives to administrative segregation must first be explored and exhausted.
• Inmates in administrative segregation have the same rights as those in the general inmate population, except those that cannot be exercised due to limitations specific to administrative segregation or security requirements.
• The Correctional Service Canada shall take into consideration an offender’s state of health and health care needs in all administrative segregation decisions (Annual Report, 2014-2015).

There are also international guidelines called the UN Standard Minimum Rules for the Treatment of Prisoners (also called the Nelson Mandela Rules). Rules 43 to 45:

• prohibit indefinite or prolonged solitary confinement (over 15 days);
• provide that solitary confinement is to be used only exceptionally; and
• prohibit use for prisoners with mental or physical health disabilities that will be exacerbated by it.

While not legally binding, Canadian courts will turn to these rules for guidance.

In British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 228, the B.C. Court of Appeal considered whether solitary confinement violates a person’s s. 7 Charter right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Court confirmed that the 1992 CCRA provisions authorizing indefinite and prolonged solitary confinement, and internal rather than external review of decisions to segregate inmates in solitary confinement, violated these rights. The Court suspended the declaration of invalidity for one year.

For over 20 years, the Correctional Investigator has criticized the overuse of solitary confinement in Canada.In Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, the Ontario Court of Appeal provided, among others, that the CCRA provisions permitting administrative segregation for over 15 consecutive days violated a person’s s. 12 Charter right to freedom from cruel and unusual punishment. The Court found the violation could not be saved by s. 1 of the Charter (reasonable and justifiable violations).

The Supreme Court of Canada recently granted leave to the federal government to appeal these two cases (jointly). (See February 13, 2020 case nos. 38574 and 38814.)

Sections 31 to 37 of the CCRA were amended in November 2019. The practice of administrative segregation is now called “Structured Intervention”. The Canadian Civil Liberties Association notes:

These [structured Intervention] units continue to house inmates in situations of extreme isolation, however inmates are now supposed to be provided four hours daily out of cell and (or including) two hours daily of meaningful human contact, subject to certain exceptions and exclusions. In addition, after hearing from CCLA and others, the law now includes a system of independent decision-makers to review decisions concerning keeping inmates in the SIUs, to consider their conditions, and to review the situation of people with mental health issues in the SIUs. The new law also addresses certain mental health supports and supports for Indigenous inmates.

However, prisoner’s advocates argue that these amendments do not adequately address the concerns about solitary confinement. For example, the new provisions do not set a time limit on solitary confinement. Thus, the federal government did not adequately address concerns about the harms. Advocates do not believe a new name is adequate to address the consequences of the practice of solitary confinement. (See: J. Bronskill, (13 Feb 2020) National Post “Supreme Court of Canada to examine solitary confinement in federal prisons”.)

Many inmates return to society eventually. It is in all of our interests to ensure they do not suffer irreversible harms while in indefinite solitary confinement.

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In Carter v Canada (Attorney General), the Supreme Court of Canada (SCC) ruled that Criminal Code sections 241 and 14 deprived adults of their right to life, liberty and security of the person under s. 7 of the Charter. Sections 241 and 14 prohibited physician-assisted dying for competent adults who sought such assistance as a result of a grievous and irremediable medical condition that caused enduring and intolerable suffering. The SCC did not need to rule on whether the Criminal Code provisions violated Charter s. 15(1).

In response, the federal government passed an amendment to the Criminal Code through Bill C-14. There were some concerns about the legislation—particularly the requirement that the person must be suffering from an end-of-life condition. Several scholars argued this would result in a constitutional challenge. However, the federal government passed Bill C-14 without addressing these concerns.

Recent litigation in Québec involves a constitutional challenge. In Truchon c. Procureur general du Canada, 2019 QCCS 3792 (Truchon), both the federal Criminal Code (s. 241.2(2)(d)) and Québec’s Act respecting end-of-life-care (s. 26(3)) were challenged for violating sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (Charter). (While the Canadian government has jurisdiction over the criminal aspects of assisted dying legislation, the provinces have jurisdiction over health-related aspects.)

At issue in Truchon was the meaning of death which has become “reasonably foreseeable”. Section 241.2(2)(d) of the Criminal Code reads:

Grievous and irremediable medical condition

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

…(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Doctors had declared Jean Truchon and Nicole Gladu ineligible for medical assistance in dying. Truchon and Gladu challenged the constitutionality of the Criminal Code provisions and Québec’s legislation requiring that their natural death be reasonably foreseeable or that they be at the end of their lives.

Jean Truchon, age 51, was born with “cerebral spastic paralysis and tripartism”. This meant that he was completely paralyzed except for his left arm. He led a relatively full life until 2012, when he permanently lost the use of his left arm. He also developed severe pain in his arms and neck, including painful spasms and intense burning. Because there is no treatment or cure and because he is now totally dependent on others, Truchon feels “he died in 2012” (at para 25). Truchon continues to have full mental function and is considered capable of consenting to medical assistance in dying. However, he is not considered to be in a situation where his natural death is reasonably foreseeable, nor is he at the end of his life (at para 45).

The Court ruled that Criminal Code s. 241.2(2)(d) was unconstitutional and delayed the implementation of the ruling for six months.Nicole Gladu, age 73, suffered from polio contracted at age 4. This left her with residual paralysis on her left side and severe scoliosis. When she was 47, she was diagnosed with post-polio degenerative muscular syndrome, which is characterized by generalized fatigue, progressive or sudden muscle weakness and pain that reduces mobility. The condition is degenerative and incurable (at paras 51-55). She only has remaining function in her upper right arm. In addition, she has severe osteoporosis, and her body no longer supports her. The spinal condition has caused severe restrictive pulmonary disease and a lung capacity equivalent to half a lung. This rib compression also causes a hiatal hernia and difficulty with feeding (at para 57). She is capable of consenting to assistance in dying (at para 67). Like Mr. Truchon, Ms. Gladu is not considered to be in a situation where her natural death is reasonably foreseeable, nor is she at the end of her life (at para 68).

The Québec Superior Court made several conclusions on the evidence. (Note: The Court has not yet translated the decision into English. The following is a Google translation of paragraph 466 of the French text.)

1. Medical assistance in dying as practiced in Canada is a strict and rigorous process that, in and of itself, has no obvious weakness;
2. The physicians involved are able to assess the patient’s ability to consent and to detect ambivalence, mental disorders affecting or likely to affect the decision-making process or cases of coercion or abuse;
3. The vulnerability of a person seeking medical assistance in dying must be assessed individually, according to their particular characteristics and not according to a reference group of “vulnerable persons”. Beyond various vulnerability factors that physicians are able to objectify or detect, it is the patient’s own ability to understand and consent that is ultimately critical in addition to other criteria set out in the law;
4. The physicians involved can distinguish a suicidal patient from a patient seeking medical assistance in dying. In addition, there are important differences between suicide and physician-assisted dying, both in the characteristics of the individuals involved and in the reasons that motivate them;
5. Neither the national data in Canada and Québec, nor the foreign data, show any drift, slippage or even increased risk for vulnerable people when the imminent end of life is not a criterion for eligibility to medical aid in dying.

The Québec Superior Court found that both pieces of legislation violated Truchon’s and Gladu’s life, liberty and security of the person under Charter s. 7. However, the Court ruled this violation was not saved under Charter s. 1 (see paras 125 to 142). The Court also addressed equality under s. 15(1) of the Charter. I will focus on the Charter s. 15(1) issue in relation to s. 241.2 of the Criminal Code.

The Court noted that Charter s. 15(1) addresses substantive equality and is not simply a question of similarity (at paras 641-3). The Court then applied the following two-step approach (as is also found in Andrews v Law Society of British Columbia, [1989] 1 SCR 143):

1. Does the law establish, prima facie or by its effect, a distinction based on an enumerated or analogous ground?
2. If so, does the law impose a burden or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating the disadvantage?

Distinction Based on Enumerated or Analogous Ground

At issue in Truchon was the meaning of death which has become “reasonably foreseeable”.The Court held that the “reasonably foreseeable death” requirement creates a distinction based on physical disability. Because of their physical conditions, Gladu and Truchon could not obtain medical assistance in dying even though they met the other requirements of the law. The Court also noted that the reasonably foreseeable death requirement did not take into account the effect of this requirement on the applicants (at para 654). Further, this requirement by its effect established a distinction according to the nature and type of disability (para 661). The restricted category is persons with disabilities who suffer intolerably of serious and incurable conditions but are not close to death (a para 663).

Imposition of a Burden or Denial of a Benefit

The Court applied a contextual analysis and concluded that the requirement of “reasonably foreseeable death” did not take into account the actual circumstances, characteristics and needs of the claimants, in a manner that respects their value as human beings compared to others the law allows to obtain a medically assisted death (at para 673). Thus, the lack of equality in the recognition of autonomy and dignity is discriminatory in this case (at para 678).

The Court also held that the discrimination was not saved by Charter s. 1. The Court ruled that Criminal Code s. 241.2(2)(d) was unconstitutional and delayed the implementation of the ruling for six months. The Court also granted both parties an exemption so that they could proceed to apply for assisted death.

Peter Hogg notes there are other places where the new legislation departs from the direction given by the SCC in Carter. It remains to be seen whether these will also result in constitutional challenges.

A worker experiencing discrimination must choose the legal avenue that will give them the result they want. For example, if pursuing the matter in court, the worker will have to start a contract claim (e.g., wrongful dismissal) or tort claim. One cannot sue in tort for discrimination, but one can sue in tort for the intentional infliction of mental suffering. The usual remedies available to the worker under tort or contract claims are money damages:

• money in lieu of notice;
• aggravated damages (if the employer terminated the plaintiff in a way that caused mental distress); or
• punitive damages (awarded in extreme cases to punish the employer for harmful behaviour).

All of these remedies have one thing in common: the court can only award money to address the losses suffered by the employee.

There are times when a worker may want money compensation, but also an apology or for the employer to introduce a discrimination policy.

In some cases, the worker may want their job back, but without having to continue to experience the discriminatory behaviour. There are ONLY two ways that a worker can get their job back:

1. For union workers, if the collective agreement allows for reinstatement; or
2. If a complaint is started under human rights legislation or occupational health and safety legislation that allows for reinstatement, and the complainant requests reinstatement. Human rights commissions usually have the ability to grant reinstatement. However, reinstatement is not possible in every situation and will depend largely on the facts of each case.

The recent Pratt v University of Alberta (Pratt) case may open the doors wider to the possibility of reinstatement. Carmen Pratt made a human rights complaint in June 2013 alleging discrimination at work under section 7(1) of the Alberta Human Rights Act (AHRA) (Pratt at paras 1, 4). The Alberta Human Rights Tribunal heard Pratt’s complaint. Chair D. Jean Munn, Q.C., held that the employer, the University of Alberta (U of A), had discriminated against Pratt on the ground of mental disability.

… reinstatement is not possible in every situation and will depend largely on the facts of each case.Further, Chair Munn held that the U of A failed to acknowledge its duty to accommodate (Pratt at para 18). After the complainant has established prima facie discrimination, the burden shifts to the respondent (the employer, in this case) to show that the treatment of the complainant was a bona fide occupational requirement or otherwise was reasonably justified (Pratt at para 154). The onus is on the employer to show that it would be impossible to accommodate the employee without undue hardship.

Chair Munn found that there was no evidence that the U of A ever considered whether Pratt needed accommodation for a disability. At a meeting on June 26, 2012, Pratt told her supervisor about her limitations and asked the supervisor to modify her job duties. At this point, the U of A had a duty ask for more information (Pratt at para 155). Chair Munn also noted that the U of A had accommodation policies in place and that it could have and should have asked Pratt to provide evidence from health professionals as to her limitations (Pratt at paras 155-156). Chair Munn concluded that there was no justification for the U of A’s failure to accommodate Pratt (Pratt at para 157).

Having found discrimination, Chair Munn turned to the remedy. This is where the parties differed:

• The Director of the Human Rights Commission asked for $25,000 to $30,000 in compensation for discriminatory treatment and lost wages for a period of 12 months.
• Pratt sought reinstatement and compensation for lost wages. She claimed she had not been able to find similar employment and that the U of A should be able to accommodate her disability given its size and sophistication (Pratt at para 168).
• The U of A argued that the appropriate range of damages for hurt feelings should be between $8,000 to $10,000 and that the claim for lost wages should be limited to the end of the six-month probationary period (August 31, 2012) (Pratt at para 158). The U of A opposed reinstatement, arguing that the employment relationship was no longer healthy. For example, Pratt had demonstrated dislike towards her supervisor.

Chair Munn awarded damages for injury to dignity and self-respect in the amount of $20,000 (Pratt at para 162). Chair Munn also ordered an award for loss of income of $34,795.40 (Pratt at para 167).

… there was no evidence that the U of A ever considered whether Pratt needed accommodation for a disability.Chair Munn then looked at three previous cases where reinstatement had been ordered. In all three cases, the workplace was large and sophisticated, and there was an opportunity for the employee to be placed in a setting outside of where the discrimination had occurred. Further, the complainants did not hold any ill will toward the respondent organizations as a whole (Pratt at paras 171-177). In one case, the Tribunal found that the complainant’s career would have ended without reinstatement given the nature of his termination (Pratt at para 177).

Chair Munn concluded that:

• Pratt had been unable to secure comparable employment and is unlikely to do so, thus eliminating her career options (Pratt at para 179);
• Pratt’s pursuit of legal rights and remedies within the employment setting and beyond should not be held against her; and
• there are numerous and varied library systems at the U of A that would allow Pratt to be placed in a similar position but not in a position with her immediate supervisor where there may remain “hard feelings” (Pratt at para 180).

Chair Munn ordered that the U of A reinstate Pratt as an employee.

In conclusion, it would seem that the remedy of reinstatement may be available if:

• the employer is “large and sophisticated”;
• there is an opportunity to re-instate the person into an equivalent position but in a different setting; and
• the position is rather specialized or depends on particular training and education, and the employee’s career would likely end (e.g., teacher, police officer, library staff).

Decision-makers should consider reinstatement more often, if the facts support it.