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Lecture

Vancouver Rape Relief v Nixon Case Brief
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Department
Commerce
Course
COMM 393
Professor
Patricia Mallia
Semester
Fall

Description
Vancouver Rape Relief Society v. Nixon FACTS Kimberly Nixon is a post-operative male-to-female transsexual woman who applied to volunteer as a peer counsellor at Vancouver Rape Relief Society in 1995. Nixon’s government identification identifies her as female. The Society is a non-profit organization that provides services to victims of male violence. It consists of unpaid volunteers and paid staff members. Ms. Nixon passed the pre-screening process to ensure she shared the Society’s political beliefs; however, during her training it came to light that she was raised as a male and had undergone sex reassignment surgery in order to legally change her gender to female. She was asked to leave the organization because the Society would not accept volunteers who had not spent their entire lives as female. Ms. Nixon laid a complaint with the Human Rights Tribunal (Tribunal) alleging she was discriminated against because of her sex. Her claim was made pursuant to s. 8(1) of the Human Rights Code, R.S.B.C. 1996, c.210 (Code) on the basis that she was denied a service customarily available to the public and pursuant to s. 13(1) of the Code on the basis that she was refused employment. Her complaint was upheld by the Tribunal and she was awarded $7500.00 in damages. The Society sought a judicial review of the Tribunal’s decision in the British Columbia Supreme Court. The Review resulted in a finding that Ms. Nixon was not discriminated against, and that the Society could invoke s. 41 of the Code to be exempt from the Code’s provisions. Ms. Nixon appealed the Supreme Court decision to the British Columbia Court of Appeal. Ten years after the original complaint to the Tribunal, the Court of Appeal rendered its decision on December 7, 2005. ISSUES 1. Was Ms. Nixon discriminated against pursuant to the provisions of the Human Rights Code? 2. If so, was the Vancouver Rape Relief Society exempt from the Code’s provisions? LAW Legislation Regarding The Discrimination Issue The Human Rights Code, s. 1 defines discrimination to include the behaviors that are described in s. 8(1)(a) and 13(1)(a) of the Code. S. 8(1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons. S.13(1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. Group Rights Exemption Section 41 of the Code exempts non-profit organizations from the Code’s application in the following circumstances: S. 41 If a charitable, philanthropic, educational, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by a physical or mental disability or by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin, that organization or corporation must not be considered to be contravening this Code because it is granting a preference to members of the identifiable group or class of persons. Additional Considerations Human rights legislation is interpreted in a “broad, liberal and purposive” manner because of the special nature of the legislation and to ensure the goals of the legislation are met. However, this approach does not allow an adjudicator to ignore the words of the legislation in order to prevent discrimination. [paragraph 24] APPLICATION OF THE LAW A. The Issue of Discrimination The analytical framework in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4 )1 (Law) requires the adjudicator to consider the degree to which the alleged discriminatory behavior injured the complainant’s human dignity. The Human Rights Tribunal determined that the Law framework established for application in Charter cases involving a balance between government and individual rights was not relevant to cases decided under the Human Rights Code which involve balancing rights between private parties. The B.C. Supreme Court disagreed and overturned the Tribunal’s decision on discrimination by applying the Law framework and finding the Society did not discriminate against Ms. Nixon. The British Columbia Court of Appeal found that the word “discriminate” does not appear in s. 8(1)(a) and s.13(1)(a), which were the sections relied upon by Ms. Nixon. The enforcement and remedy sections of the Code refer to discrimination as defined in s. 1. That definition includes any conduct described in s. 8(1)(a) and 13(1)(a) of the Code. Therefore the Court of Appeal determined that the conduct in those sections became BY DEFINITION discrimination. In other words, Ms. Nixon did not need to prove the acts were discriminatory, only that they had occurred. [para. 9] The Court of Appeal further determined it was not necessary to determine whether the Law analysis should apply to the Human Rights complaint brought by Ms. Nixon because the conduct she complained of fit within the definition of discriminatory behavior set out in the Code. The BC Court of Appeal overturned the Supreme Court Judge’s finding that there was no discrimination o
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