Supreme Court ruling could change how human rights law is applied in Quebec
After Marco Ayotte's uncle used a homophobic slur toward him in July 2018 and said he should kill himself, Ayotte didn't just fume about a vulgar, insensitive relative.
He filed a complaint with the Quebec's human rights commission.
In April, the province's human rights tribunal, which hears cases brought by the commission, ruled that the comments made by Norman Tremblay, Ayotte's uncle, showed "a lack of humanity" and amounted to discrimination.
It ordered Tremblay to pay more than $10,000 dollars in damages.
That case was the latest in a series to be singled out in a recent Supreme Court of Canada decision as examples of overreach by the human rights tribunal.
The Supreme Court ruling, which could change the way discrimination cases are decided in Quebec, has been described as a victory for free speech but also as a decision that sets back human rights law in the province by decades.
Montreal-based constitutional lawyer Julius Grey, who successfully argued the Supreme Court case, said the ruling clarifies what constitutes discrimination and is part of a series of rulings limiting the expanding jurisdiction of Canadian administrative tribunals.
"Discrimination cannot turn out to be a catch-all for anything that somebody does not like," Grey said in a recent interview. "Discrimination, in most cases, is not mere words -- it's denial of services or rights."
Grey represented Mike Ward, a Quebec comedian who was ordered in 2016 by Quebec's human rights tribunal to pay $35,000 in moral and punitive damages to a young disabled singer whom he targeted in a joke.
In a 5-4 judgment on Oct. 29, the high court set aside Ward's penalty for mocking Jérémy Gabriel.
Ward had defended himself by saying a judge shouldn't decide "what constitutes a joke on stage," and a majority of the Supreme Court concluded that the elements of a discrimination claim under the Quebec charter had not been established in the case.
"A discrimination claim is not, and must not become, an action in defamation," the court said in its ruling. "The two are governed by different considerations and have different purposes. A discrimination claim must be limited to expression whose effects are truly discriminatory."
The court also took aim at what it described as a "trend" by Quebec's human rights tribunal to interpret the Quebec Charter of Human Rights and Freedoms as giving it the right to adjudicate on cases involving people who insult others.
That "trend," the court said, "deviates from this court's jurisprudence and reflects a misinterpretation of the provisions at issue in this case."
Grey said he hopes the ruling will make Quebec's human rights tribunal more selective about the cases it accepts.
"It should get them to say, 'We don't have jurisdiction merely because somebody said something, unless it's tied to a refusal of services,"' he said.
Examples of discrimination where a rights tribunal would have jurisdiction include a landlord refusing to accept people with children, an employer who won't hire Black people or a public building that isn't accessible to disabled people, Grey said. "But mere words are not that."
Quebec's human right commission said it was still studying the Supreme Court decision and wouldn't comment on how it thought the ruling would affect its approach.
The human rights tribunal refused to comment.
In its decision in the Ward case, the Supreme Court pointed to five cases adjudicated by Quebec's human rights tribunal -- including the Tremblay case -- that raise "serious concerns in light of our precedents on freedom of expression … a discrimination claim must be limited to expression whose effects are truly discriminatory."
Among the cases is a March 2021 ruling in which a woman in Quebec City was ordered to pay $7,500 in damages after she mocked a woman for wearing a hijab and told her to go back to her country.
The Supreme Court also pointed to a 2018 decision in which a woman who sent a former friend of her mother text messages about the woman's weight, ethnic origin and sexuality was ordered to pay $6,000 in damages.
Montreal human rights lawyer Pearl Eliadis said that while she doesn't have a problem with the Supreme Court's specific finding that Ward's comments were not discriminatory, other elements of the decision are a considerable setback for human rights law.
"I think the majority decision is deeply problematic, because it makes a number of statements that are not reflective of how human rights law has evolved in this area," she said.
Eliadis said she's concerned that the decision takes discriminatory statements out of human rights law and places them under defamation law -- except in situations where the comments might be considered hate speech.
The Supreme Court ruling, she added, will likely give confidence to someone accused of discriminatory speech to argue that the case doesn't belong before Quebec's human rights tribunal.
"Human dignity is at the centre of human rights legislation," she said. "So the idea that human dignity only 'belongs' to the law of defamation, and therefore you can't use that as a basis for a human rights complaint, runs contrary to about half a century of human rights jurisprudence in this country."
Speech alone can amount to discrimination that goes beyond just offending someone, Eliadis said: "It often results in damages that are linked to the harm caused to the person, including to their dignity and honour."
-- This report by The Canadian Press was first published Dec. 1, 2021.
-- This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.
CTVNews.ca Top Stories
How quietly promised law changes in the 2024 federal budget could impact your day-to-day life
The 2024 federal budget released last week includes numerous big spending promises that have garnered headlines. But, tucked into the 416-page document are also series of smaller items, such as promising to amend the law regarding infant formula and to force banks to label government rebates, that you may have missed.
Which foods have the most plastics? You may be surprised
'How much plastic will you have for dinner, sir? And you, ma'am?' While that may seem like a line from a satirical skit on Saturday Night Live, research is showing it's much too close to reality.
opinion I've been a criminal attorney for decades. Here's what I think about the case against Trump
Joey Jackson, a criminal defence attorney and a legal analyst for CNN, outlines what he thinks about the criminal case against Donald Trump in the 'hush money trial.'
$3.8M home in B.C.'s Okanagan has steel shell for extra wildfire protection
A home in B.C.'s Okanagan that features a weathering steel shell designed to provide some protection against wildfires has been listed for sale at $3.8 million.
Diver pinned under water by an alligator figured he had choice. Lose his arm or lose his life
An alligator attacked a diver on April 15 as he surfaced from his dive, nearly out of air. His tank emptied with the gator's jaws crushing the arm he put up in defence.
Psychologist becomes first person in Peru to die by euthanasia after fighting in court for years
A Peruvian psychologist who suffered from an incurable disease that weakened her muscles and had her confined to her bed for several years, died by euthanasia, her lawyer said Monday, becoming the first person in the country to obtain the right to die with medical assistance.
Mystery surrounds giant custom Canucks jerseys worn by Lions Gate Bridge statues
The giant stone statues guarding the Lions Gate Bridge have been dressed in custom Vancouver Canucks jerseys as the NHL playoffs get underway.
Celebrity designer sentenced to 18 months in prison for smuggling crocodile handbags
A leading fashion designer whose accessories were used by celebrities from Britney Spears to the cast of the 'Sex and the City' TV series was sentenced Monday to 18 months in prison after pleading guilty in Miami federal court on charges of smuggling crocodile handbags from her native Colombia.
Wildfire leads to evacuation order issued for northeast Alberta community
An evacuation order was issued on Monday afternoon for homes in the area of Cold Lake First Nation.