The Federation of Francophone and Acadian Communities is challenging the constitutionality of the de-funding of the Court Challenges Program (CCP), particularly as it applies to minority language rights. LEAF applied for leave to intervene in the Federation's challenge as part of a coalition organized by the Council of Canadians with Disabilities. The Coalition sought to argue that the de-funding of the Court Challenges Program, specifically the equality seeking division, severely hinders the ability of members of historically disadvantaged, equality-seeking groups to assert their rights guaranteed by the Charter. The Coalition sought to argue that the de-finding exacerbated the access-to-justice crisis in Canada and under-mined constitutional principles.
Unfortunately on January 8, 2008, the Coalition was denied leave to intervene in Federation of Francophone and Acadian Communities by the Federal Court of Canada.
The Coalition's work has been effective in bringing public attention to the case and LEAF will continue to participate in public discussions about the importance of the Court Challenges Program. The case provided LEAF with an opportunity to work with other equality-seeking groups in an effort to articulate the impact of the cuts to the Court Challenges Program on disadvantaged communities. Finally the substantive work on the joint factum, particularly the work on the importance of government-funded equality-promoting programs, will be useful in LEAF's intervention work in the future.
Honda v. Kevin Keays
LEAF was pleased to be granted leave to make oral argument before the Supreme Court of Canada in Honda v. Keays, a wrongful dismissal case regarding compensation for harassment and discrimination for employees with disabilities. Counselors, Susan Ursel and Kim Bernhardt, appeared on LEAF's behalf before the Court on February 20th.
The appeal raised 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. It also examined the relationship between human rights and the common law. LEAF is concerned that equality claimants are currently denied full and meaningful access to justice. This is because the common law fails to recognize fully discriminatory wrongs, and to adequately and coherently compensate for discriminatory harm. This has resulted in the artificial and unnecessary separation of human rights laws from civil wrongs. LEAF argued that employment contracts should be understood to prohibit all forms of discrimination, and that equality claimants are entitled to compensation for discrimination as an implied term of contract.
LEAF will also argued that the comparator group analysis for both human rights and section 15 purposes must incorporate substantive equality, not the formal equality limitations advocated by Honda.
A decision in the case was reserved. LEAF's factum for Honda v. Keays is available at www.leaf.ca.
CCR et al. v. HMQ
In January the Federal Court of Canada released its final decision in Canadian Council of Refugees (CCR) et al. v. Her Majesty the Queen and found that the Safe Third Country Agreement (STCA) at issue in the case, is unconstitutional and will be invalid as of February 1, 2008. The case deals with a challenge to the constitutionality of the Safe Third Country Agreement that was signed in December, 2001 and went into force in 2004. The Agreement prevents refugees from seeking safe haven in Canada, if they are seeking to enter from the United States at a land border, which can result in their return to persecution and torture. The challenge claimed that the Agreement is in violation of sections 7 and 15 of the Charter, as well as in violation of Canada's international human rights obligations. The applicants sought a declaration that the Agreement is invalid and unlawful.
LEAF applied for leave to intervene before the Federal Court in this case but was denied leave.
The Federal Government is appealing the Federal Court decision and seeking a stay of the decision. The appeal is expected to likely be heard on an expedited basis. For more details about STCA and its implications for women visits http://www.leaf.ca/CCr%20et%20al%20v%20HMQ%20Article%20-%20by%20F%20Sampson%20-%20Feb%202008.pdf.
