Academic: Journal Article

"Wrongful Termination Claims in the Supreme Court of Canada: Coming Up Short" 34:1 Dalhousie Law J

The author criticises the SCC finding that the manner the employee was terminated, in which the employer chose to stop accommodating the employee’s disability, did not constitute discrimination, despite the lower courts finding of bad faith. The SCC affirms that a breach of the human rights code can not constitute an independent actionable cause of action. The Court restricts the use of bad faith damages in a wrongful dismissal cases.

"Adjudicating Systemic Equality Issues: The Unfulfilled Promise of Action Travail des Femmes" 18 Canadian Labour & Employment Law Journal 177

Discusses the difficulty in crafting a systemic remedy that is enforceable and the Supreme Court of Canada’s retreat from the issuance of systemic remedies even in a  case like Moore where there appeared to be  systemic discrimination.

"How Did We Get Here - Setting the Standard for the Duty to Accommodate" 59 University of New Brunswick Law Journal 95

Discusses the inter-connectedness of the concepts of duty to accommodate, Bona Fide Occupational Requirement and undue hardship. She argues that the duty to accommodate is part of the test for BFOR, within the process of justification required which is linked to the concept of reasonable necessity in step three of the Meiorin test. Discusses that the implication of the duty to accommodate, as established in the Meiorin test, requires considering alternative standards to the employers standard being questioned, which challenges norms and has the potential to affect substantive change.

"Tackling Disability Discrimination at Work: Towards a Systemic Approach", 4:1 McGill JL & Health 17

Advocates for a systemic approach to anti-discrimination law and reviews the factors considered when anticipating the need for individualized accommodation; reiterates that prima facie case of discrimination should be distinct from assessments of a bona fide occupational requirement. 

"Balancing Employer Policies and Employee Rights: The Role of Legislation in Addressing Workplace Alcohol and Drug Testing Programs", 46:1 Alberta L Rev 141

A brief discussion of pre-employment drug testing. Discusses the law on when a drug dependency is required to be accommodated, the justification for drug testing, and the workplace health and safety plans to support testing. It discusses when pre-employment, pre-access, random drug testing and zero tolerance policies are discriminatory. It discusses the implications of medical cannabis and recreational use. Discusses a decision where the lack of cannabis testing that could determine impairment was found to be undue hardship.

"Prima Facia Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada's Human Rights Code Jurisprudence?" 9 Journal of Law & Equality 33

Argues that the decision in Tranchemontagne to import a substantive test at the prima facia stage, into human rights tribunal cases, shifts the burden onto the claimant to prove that the rule was substantively discriminatory and is inconsistent with previous Supreme Court of Canada decisions. 

"Lost in Translation: The Disability Perspective in Honda v Keays and Hydro-Quebec v Syndicate" 3:1 McGill Journal of Law & Health 137

A critical examination of undue hardship standard for “non-mainstream” disabilities in employment law and labour law.  Duty to accommodate does not require a fundamental change to the nature of the employment relationship. The applicability of human rights law in wrongful dismissal action and collective agreement grievance. A good summary of the basic principals of undue hardship. 

"People with Disabilities and the Charter: Disability rights at the Supreme Court of Canada under the Charter of Rights and Freedoms" 5:1 Canadian Journal of Disability Studies

An empirical study of the Supreme Court of Canada’s interpretation of the Charter of Rights in disability related cases. The study tracks the evolution of the concept of disability discrimination and the the use and evolution of different models of disability. 

"The Implications of the Social Model of Disablement for the Legal Regulation of the Modern Workplace in Canada and the United States" 33(1) Manitoba Law Journal 1

A philisophical discussion of the market influence on the duty to accommodate. A useful discussion of the standard for an employer to establish BFOR. Discusses analysis to determine reasonable accommodation. Discusses how certain decisions of the SCC have moved towards acknowledgment of the social model of disability. 

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