means impacting the rights of another? These can be challenging
issues to sort out, but there is now a framework to help guide
In R. v. S. (N.), the Supreme Court weighed in on the issue and
set out a legal framework for assessing competing rights. The case
involved the conflict between a woman’s religious freedom to wear
a niqab while testifying about a criminal matter, with the rights
of the accused to a fair trial. The court endorsed an approach that
balances the extent of the competing rights:
■■ Is there an interference with two legitimate rights?
■■ Is there a way to accommodate both rights and avoid the
■■ Do the salutary effects of the interference with one of the
rights outweigh the deleterious effects of it?
Although the decision was rendered in relation to protections
prescribed by the Charter of Rights and Freedoms (the “Charter”),
the court’s framework arguably provides a broader guideline on
reconciling competing claims to most human rights protections.
We look at it whenever we have a matter in which employees’ human
rights protections appear to conflict.
3. Recognizing Substantive Equality
Andrews v. Law Society of British Columbia, 1989 1 SCR
What does equality mean in Canada? In 2016, we often
forget that following the advent of the Charter, there was
widespread disagreement over the extent of the section 15 equality
protections. Some legal decision-makers interpreted the language
formally and restrictively, equating the protection with the prevalent
maxim that persons who are “similarly situated ought to be
In Andrews, the Supreme Court went further and adopted a
contextual analysis. The case involved a lawyer who was denied admission
to the British Columbia bar because he lacked Canadian
citizenship. The court endorsed a substantive approach to equality,
which recognizes that universal laws may nevertheless be discriminatory
to certain individuals, depending on differences in personal
characteristics and situations. Specifically, the court held that consideration
must be given to the content of the law, its purpose and
its impact upon those to whom it applies, as well as those excluded
from its application.
Bottom line: treating employees equally does not necessarily
mean treating them the same. The approach in Andrews is so well
entrenched in workplace norms and values, not to mention the human
rights case law, that it is hard to imagine there was a time
when we approached assessing equality rights differently.
4. Sexual Harassment as Sex Discrimination
Janzen v. Platy Enterprises Ltd., 1989 1 SCR 1252
Human rights statutes throughout Canada have long prohibited
discrimination in employment on the basis of sex. Since the early
1980s, human rights adjudicators began expanding the protection
Love the wind /Shutterstock.com
WHAT DOES AN EMPLOYER DO WHEN ACCOMMODATING ONE
EMPLOYEE MEANS IMPACTING THE RIGHTS OF ANOTHER?
THESE CAN BE CHALLENGING ISSUES TO SORT OUT, BUT THERE
IS NOW A FRAMEWORK TO HELP GUIDE THE PROCESS.
24 ❚ OCTOBER 2016 ❚ HR PROFESSIONAL