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LEAF is saddened by the recent closure of the its sister organization, the National Association of Women and the Law (NAWL), which was forced to close its office and lay off its entire staff due to changes to Status of Women Canada funding criteria. In fall 2006, the federal government eliminated equality from the Status of Women mandate which ended NAWL's eligibility to be funded. NAWL's closure will leave a significant gap in legal research and advocacy exposing women's experiences of discrimination. Established in 1974, NAWL's educational and government relations work has been instrumental in law reform initiatives related to sexual assault, pay equity, and family law. Even though NAWL will continue to operate with a volunteer board of directors, it will be unable to perform its major consultations and advocacy work. On September 20, LEAF Chairperson, Kim Brooks, attended NAWL's press conference on Parliament Hill in support of calls for the federal government to reinstate the equality mandate to Status of Women Canada and to provide emergency funds to NAWL. For more information, go to www.nawl.ca/ns/en/Actions/september2007.html/.

Honda v. Keays

Honda v. Kevin Keays is a wrongful dismissal case that raises the issues of compensation for harassment and discrimination for employees with disabilities. In 2005, the Ontario Superior Court awarded $500,000 in punitive damages to Kevin Keays after he was wrongfully dismissed by his employer, Honda. The Keays award is particularly significant since under the Ontario Human Rights Code punitive damages are not available at all. Honda subsequently appealed the decision to the Supreme Court of Canada.

This appeal raises the question of whether courts have the responsibility to apply common law principles in a manner consistent with the protections afforded to individuals by human rights law, and the relationship between human rights and the common law. LEAF is concerned that the failure of the common law to recognize fully discriminatory wrongs, and its failure to adequately and coherently compensate for discriminatory harm, resulting from the artificial and unnecessary separation of human rights laws from civil wrongs, means that equality claimants are denied full and meaningful access to justice. If granted leave to intervene, LEAF will argue that employment contracts should be understood to include a prohibition on all forms of discrimination, and that equality claimants are entitled to compensation for the breach of this implied term of contract. An implied term of a modern employment contract would be that an employee shall not engage in nor be subject to sexual harassment.

This case also deals with the appropriate comparator group analysis to be applied in the analysis of discrimination claims in the human rights context. This is an issue that LEAF has devoted considerable attention to as part of its Law project as the comparator group analysis is a critical component of the test for discrimination. LEAF will argue that the comparator group analysis for both human rights and section 15 purposes must incorporate substantive equality, not the formal equality limitations advocated by the Appellant Honda.

Honda v. Keays also involves the issue of the ability of courts to grant awards of punitive damages based on discrimination as a separate actionable wrong. LEAF is interested in the issue of whether courts should award punitive damages for breach of human rights law. This directly impacts women as a group because women experience distinct forms of discrimination and harassment in their workplaces that  make them vulnerable to serious violence, and that can be life threatening, LEAF is interested in the role that punitive damages could play in addressing and compensating for violations of human rights law, for example through the establishment of liability for employers for punitive damages associated with sexual harassment.  Liability of employers for punitive damages would result in increased accountability on the part of employers, and could motivate them to provide safe working environments for women. Liability for punitive damages could provide for an increased incentive for employers to provide safe, discrimination-free, working environments for women.

LEAF applied for leave to intervene before the Supreme Court of Canada in this case in August, 2007. The oral hearing before the Supreme Court is scheduled for February 20, 2008. Counsel for LEAF in this case are Susan Ursel and Kim Bernhardt.

International Visits

Ghana passes Domestic Violence Bill

LEAF regularly receives visits from international equality seeking groups. This summer we were pleased learn from and share our work with Women in the Law and Development in Africa-Ghana (WILDAF), and ABANTU for Development-Regional Office for West Africa.

WILDAF is a network of organizations across Ghana working to improve women's rights in the law across Africa. WILDAF advocates at local, national, and pan-African level to make governments more accountable to fulfilling international treaty obligations that promote women's rights through law reform and development. ABANTU for Development educates policymakers and NGOs on gender equality across West Africa. Through the efforts of WILDAF, ABANTU and others, Ghana has recently passed a Domestic Violence Act which establishes the definition and prohibition of domestic violence; legislates the requirement of support measures for survivors of domestic violence; and outlines criminal charges for perpetrators of domestic violence.

In July, LEAF participated in visits from WILDAF-Ghana and ABANTU organized by Canadian Crossroads International, a Canadian organization that works to advance international human rights by engaging and strengthening the capacity of organizations internationally. LEAF representatives participated in a roundtable meeting on July 17, together with several other local and national women's equity seeking organizations to learn about the political and legislative climate in Ghana and to provide an overview of the historical and current climate for women's rights in Canada. A significant part of the discussion focused on the current setbacks, both politically and judicially, for promoting women's equality. There was also significant dialogue about the strengths and weaknesses of Canada's legal approach to responding to domestic violence through the Criminal Code.

In a subsequent meeting on July 23rd, Ghanaian representatives received information specifically related to LEAF's work. There was keen interest in the Charter of Rights and Freedoms and how LEAF has used it as a tool to create change in the law through our interventions and various court challenges.

Kenya Law Reform Commission

LEAF was also pleased to host representatives of the Kenya Law Reform Commission (KLRC) during their visit to Canada to review gender equality legislation and law reform initiatives. The KLRC is in the process of drafting several bills to advance women's equality rights in Kenya, including a Matrimonial Property Bill, a Domestic Violence Bill, the marriage law and an Equal Opportunities Bill. The Commission was interested in learning from the Canadian experience of how gender related laws and operationalized gender principles have been implemented in federal law.

During their visit Mr. Kathurima M'Inoti (Chair), Ms. Nancy Baraza (Vice-Chair), and Mr Destario Oyats (Commissioner), networked with several Toronto non-profit organizations working to advance women's equality and visited the courts. LEAF hosted meetings for the KLRC with organizational representatives from the Metropolitan Action Committee on Violence Against Women and Children, YWCA, and Toronto Women Call to Action, Canadian Crossroads International as well as initiated introductions between KLRC and the Feminist Alliance for International Action. The group discussed particular challenges related to Canadian laws governing domestic violence; women participation in politics; prostitution; and gender-based analysis in policymaking and in the courts.

Visit from Serbia Gender Advisor, Zorana Sijački

Canadian International Development Agency (CIDA) local gender monitor and advisor in Serbia, Zorana Sijački, visited Canada to network with individuals and organizations working in gender equality. A current priority with respect to gender equality in Serbia is the interpretation and application of a new provision in the Serbian Constitution guaranteeing gender equality. Those working in the area of gender equality in Serbia want to ensure that this provision provides for substantive equality for women. Other priorities include the advancement of women's equality rights in the specific contexts of violence against women and family law. There is an interest in improving the capacity of non-governmental organizations to work more effectively in advancing women's equality rights through test case litigation, law reform, and education.

On September 24, LEAF also discussed with Ms. Sijački the strengths and weaknesses of the s.15 equality rights guaranteed under the Canadian Charter of Rights and Freedoms, and to provide some comparative analysis of the equality rights challenges being experienced in Canada with those being experienced in Serbia.  

LEAF congratulates longtime volunteer, Karen Busby, who was awarded YWCA's national Woman of Distinction for her outstanding work in the "Business and the Professions" category. The University of Manitoba law professor has made significant contributions to LEAF's work, both regionally and nationally. Karen has served on the LEAF Manitoba Board, chaired its legal committee, monitored the impact of law on women in Manitoba and recommended national action when needed. Karen has also made a significant contribution to LEAF's national litigation activities. She served five years on the former National Legal Committee (now the Law Program Committee), providing expertise on obscenity law, censorship, sexuality, and sexual violence.

In addition to her longstanding community advocacy through LEAF, Karen is also founding member of GOSSIP (Group Organizing on Same Sex Issues and Principles) and a board member of Egale Canada.

Congratulations Karen!

In Memory of Alisa Noda

The LEAF family mourns the loss of a dear friend, Alisa Noda, who passed away suddenly on July 3^rd. Alisa was passionate about ensuring LEAF was a strong and vibrant organization. Her commitment was demonstrated both at the branch and national levels through countless hours of hard work in a number of capacities and as a proud ambassador on behalf of the organization. As a volunteer for over 10 years, Alisa served on numerous committees and the board of West Coast LEAF, including as its Chair for four years before joining the LEAF National board in 2004. She stepped off the national board on 2006, but continued her involvement as a member of the Governance Committee providing her thoughtful, deliberate and astute considerations to complex matters on that committee up to two weeks before her passing.

A former teacher turned lawyer, Alisa had a thriving Aboriginal law practice in Vancouver, British Columbia. At an early age, she had committed herself to making the world a better place through her volunteer activities with several organizations. In addition to LEAF, her latest passion was the National Nikkei Heritage Centre, a Japanese Canadian heritage museum based in Burnaby, BC, where Alisa had just assumed the position of Chair of the Board.

Alisa was a leader, mentor, motivator and role model as well as a litigator, artist, singer and dancer. She lived her life with integrity, patience and kindness. We are honoured to have been the beneficiary of so much of her time and her talents, and that she prepared so many to carry on the work she was passionate about. Alisa left an indelible mark on LEAF that will be felt for years to come. Her untimely passing was a tremendous shock to all who knew her and is deeply felt throughout the LEAF family. Her husband, family and friends remain in our thoughts.