Human Rights Law Conference 2022: Combo

Course Chairs
Sandra F. Guarascio (she/her) — Roper Greyell LLP, Vancouver
Lindsay Waddell (she/her) — Moore Edgar Lyster LLP, Vancouver

About the Course Chairs
Sandra Guarascio (she/her) is a partner with Roper Greyell LLP, Vancouver who has been recognized by Lexpert, Best Lawyers Canada, and Who's Who Legal for her work in workplace human rights. She assists public and private sector employers by providing balanced, strategic and proactive representation and advice for unionized and non-unionized environments. Sandra practices in all areas of employment and labour law, with a particular interest in human rights and respectful workplace issues. She is an experienced investigator, advocate, facilitator and speaker, and has conducted numerous workshops dealing with management issues, discrimination, accommodation, and workplace harassment and bullying.

Sandra clerked with the BC Supreme Court and was called in 2002. She has been the co-chair of CLEBC's award winning annual two-day Human Rights Conference since 2007.

Lindsay Waddell (she/her) is a partner at Moore Edgar Lyster LLP where she practices human rights, labour, administrative, constitutional, and professional regulatory law. She acts for public and private sector unions, individuals, and professional regulators on a wide variety of matters.

Lindsay is an experienced litigator who has appeared as counsel at all levels of court and in front of all manner of administrative tribunals. When not litigating, Lindsay also conducts independent investigations for institutional clients.

Lindsay is frequently asked to teach and present to audiences on a wide range of subjects including human rights, labour law, advocacy, and ethical issues. She is co-chair of the Human Rights Subsection of the CBABC, a regular panelist for Lancaster House, and an instructor at the Canadian Labour Congress Winter School. 

Land Acknowledgement
Elder Carleen Thomas — Tsleil-Waututh Nation, North Vancouver

Tsleil-Waututh Nation elder, Carleen Thomas, is the first Indigenous person to be named as the next chancellor at Emily Carr University of Art and Design in Vancouver. As an educator, former council member, and special projects manager for the TWN Treaty, Lands, and Resources department, Carleen will serve a three-year term at ECUAD starting this fall 2022 as the ceremonial head of the university, and will be sitting as a member of the board of governors and the senate, also acting as an ambassador for the university.

Featured Speakers
Isabel (Sa-Gyo) Jackson (she/her) — Department of Justice, Vancouver
Amber Prince (she/her) — BC Human Rights Tribunal, Vancouver

Isabel (Sa0Gyo) Jackson is a member of the Gitxsan First Nation from Gitanmaax (Hazelton) BC.

Isabel graduated from UBC Law School in 1998 and was called to the BC bar in 1999. She is counsel with the federal Department of Justice where she has worked in the Litigation and Dispute Resolution Section since 2001. Working in the federal public service was commended to her by her father, Captain Fred Jackson, who was a retired vessel master with the Department of Fisheries and Oceans. As part of her practice she is most grateful for her work toward resolving the claims of Indian Residential School survivors and for the freedom she has within the Department to raise the profile of Indigenous people and issues.

But the role she takes the most pride and satisfaction from is being the grandmother of Joel and Izzy.

Amber Prince (she/her), BA (SFU), JD (UBC), LLM (UVic) was appointed as a member of the BC Human Rights Tribunal on January 4, 2021 for a four-year term. She is also a member of the Sucker Creek (Cree) Nation (Treaty 8) but grew up on the unceded territory of the Lheidli T'enneh First Nation (Prince George), and now lives on the unceded territories of the Coast Salish peoples, including the xʷməθkʷəy̓əm (Musqueam), Skxwú7mesh (Squamish), and səlil̓wətaʔɬ (Tsleil-Waututh) Nations. From 2006-20, Amber provided a range of legal advocacy services for women at Atira Women's Resource Society.

Planning Committee
Tonie Beharrell (she/her) — Southern Butler Price LLP, North Vancouver
Devyn Cousineau (she/her) — BC Human Rights Tribunal, Vancouver
Sara Forte (she/her) — Forte Workplace Law, Surrey
Koml Kandola (she/her) — Kandola Arbitration Services Ltd., North Vancouver
Christopher M. McHardy (he/him) — McCarthy Tétrault LLP, Vancouver
Laura Track (she/her)— Community Legal Assistance Society, Vancouver
David G. Wong (he/him) — Fasken Martineau DuMoulin LLP, Vancouver
Kristen Woo (she/her) — Director, Human Rights Office, Simon Fraser University, Burnaby

Faculty
Reut Amit (she/her) — Southern Butler Price LLP, North Vancouver  
Tom Beasley (he/him) — Bernard LLP, Vancouver
Tonie Beharrell (she/her) — Southern Butler Price LLP, North Vancouver
Meera Bennett (she/her) — Legal Counsel, Ministry of Attorney General, Vancouver
Aleem S. Bharmal, KC (he/him) — Community Legal Assistance Society, Vancouver
Jonathan Blair (he/him) — Community Legal Assistance Society, Vancouver
barbara findlay, KC (she/her) — Law Office of barbara findlay KC, Vancouver
Katherine A. Hardie (she/her) — BC Human Rights Tribunal, Vancouver
Carly Hyman (she/her) — Staff Lawyer – Inquiries and Investigations, BC's Office of the Human Rights Commissioner, Victoria
Dalya Israel (she/her) — Executive Director, WAVAW Rape Crisis Centre, Vancouver 
Richard B. Johnson (he/him) — Ascent Employment Law Corporation, Vancouver  
Sarah Khan, KC (she/her) — General Counsel, BC's Office of the Human Rights Commissioner, Vancouver 
Jennifer Khor (she/her) — Supervising Lawyer, SHARP Workplaces Legal Advice Clinic, Community Legal Assistance Society, Vancouver 
Joanne Kim (she/her) — Ministry of Attorney General, Vancouver  
Guuduniia La Boucan (she/her) — Staff Lawyer, BC's Office of the Human Rights Commissioner, Victoria
Daniel McBain (he/him) — Moore Edgar Lyster LLP, Vancouver 
Christopher M. McHardy (he/him) — McCarthy Tétrault LLP, Vancouver
Victoria Merritt (she/her) — Dentons Canada LLP, Vancouver 
Nazeer T. Mitha, KC (he/him) —Mitha Law Group, Vancouver
Leanne Monsma (she/her) — Fasken Martineau DuMoulin LLP, Vancouver
Emily Ohler (she/her) — Chair, BC Human Rights Tribunal, Vancouver
Clea Parfitt (she/her) — Clea F. Parfitt, Lawyer, Vancouver
Daniel J. Reid (he/him) — Harper Grey LLP, Vancouver
Harmit Sarai (she/her) — Forte Workplace Law, Surrey
Dr. Jaleh Shahin, M.Ed., PhD, ABPP (she/her) — Registered Psychologist (BC, Alberta & Ontario), Board Certified in Clinical Psychology, UPsilon Clinic Inc., Vancouver
V. Victoria Shroff (she/her) — Shroff & Associates (Shroff Animal Law), Vancouver
Adrienne S. Smith (they/them) — Adrienne Smith Law, Vancouver
Lauren Soubolsky (she/her) — McCarthy Tétrault LLP, Vancouver
Joana Thackeray (she/her) — BC Human Rights Tribunal, Vancouver
David G. Wong (he/him) — Fasken Martineau DuMoulin LLP, Vancouver
Kristen Woo (she/her) — Director, Human Rights Office, Simon Fraser University, Burnaby

Course Materials Contributors
Matthew Allard — Fasken Martineau DuMoulin LLP, Vancouver
Heather M. Hettiarachchi (she/her) — Integritas Workplace Law Corp., Richmond
Fabian Jankovic (he/him) — Fasken Martineau DuMoulin LLP, Vancouver
Shawnee Monchalin (she/her) — BC Human Rights Tribunal, Vancouver
Abby Nann (she/her) — McCarthy Tétrault LLP, Vancouver
Milica Pavlovic (she/her) — Articled Student, McCarthy Tétrault LLP, Vancouver
Iryna Ponomarenko — Articled Student, Fasken Martineau DuMoulin LLP, Vancouver
Rory Shaw (he/him) — Ministry of Attorney General, Vancouver
Cayleigh Shiff (she/her) — Community Legal Assistance Society, Vancouver
Celia Taylor (she/her) — Articled Student, Community Legal Assistance Society, Vancouver

Click here for full faculty bios

Day 1: Thursday, November 3, 2022

Welcome and Land Acknowledgement (9:00 – 9:10)

Genevieve Chang (she/her) — Program Lawyer, CLEBC, Vancouver
Elder Carleen Thomas — Tsleil-Waututh Nation, North Vancouver
Sandra F. Guarascio (she/her) — Roper Greyell LLP, Vancouver
Lindsay Waddell (she/her) — Moore Edgar Lyster LLP, Vancouver

Case Law Update (9:10 – 10:00)

• analysis and trends
• effects on practice

Christopher M. McHardy (he/him) — McCarthy Tétrault LLP, Vancouver
Lauren Soubolsky (she/her) — McCarthy Tétrault LLP, Vancouver

BREAK (10:00 – 10:15)

Administrative Delay: Blencoe 25 Years Later—Systemic Delays and Recommendations for Change (10:15 – 11:05)

• review administrative delay decisions since Blencoe
• analyze the volume of complaints and the average amount of time in each stage of the current BCHRT adjudicative system (intake, mediation, dismissal applications, and adjudication) from 1996 to the present
• review the human rights intake and adjudication processes in the other 13 Canadian jurisdictions, with respect to their systems, tools, and timelines
• make recommendations for:
  • changes to the BCHRT system to reduce administrative delays and costs, and to increase operational efficiencies and complaint resolutions
  • additional tools at intake and adjudication
  • system based changes that would move human rights adjudication from being centred on paper and lawyers to being more people and resolution focused

Tom Beasley (he/him) — Bernard LLP, Vancouver
Meera Bennett (she/her) — Legal Counsel, Ministry of Attorney General, Vancouver

The Changing Make Up of the "Reasonable Person" in Sexual Harassment Cases and Beyond (11:05 – 12:00)

• changes to the "reasonable person" and challenges to the "objective unwelcomeness" test in Basic v. Esquimalt Denture Clinic Ltd., 2020 BCHRT 138 and Ms. K. v. 0932008 BC Ltd., 2021 BCHRT 158
• the impact of these decisions on Tribunal, Arbitration and other administrative law decisions (e.g., WorkSafe) and the implications of this new direction

Reut Amit (she/her) — Southern Butler Price LLP, North Vancouver  
Tonie Beharrell (she/her) — Southern Butler Price LLP, North Vancouver

LUNCH with Featured Speaker (12:00 – 1:15)

Indigenous Identity

Amber Prince (she/her) — BC Human Rights Tribunal, Vancouver

Challenging Non-disclosure Agreements and the Harm they Cause: Paving the Way for More Trauma-informed Approaches (1:15 – 2:20)

• the evolution of the use of NDAs in settlements of sexual harassment cases, and the movement to limit their use in other jurisdictions, including a comparative analysis of legislation that restricts their use
• frontline perspectives of the psychological harm, further trauma, and the fear that some individuals who are silenced by signing an NDA experience preventing them from getting the help they need
• issues to consider when advising a client regarding an NDA, strategies complainant's counsel may use to limit the restrictions of an NDA, and what respondent's counsel should consider to be more trauma-informed
• increasing use of defamation claims to silence complainants and bystanders, available defences, the reality of the risks to complainants from a trauma-informed perspective

Dalya Israel (she/her) — Executive Director, WAVAW Rape Crisis Centre, Vancouver 
Jennifer Khor (she/her) — Supervising Lawyer, SHARP Workplaces Legal Advice Clinic, Community Legal Assistance Society, Vancouver 
Clea Parfitt (she/her) — Clea F. Parfitt, Lawyer, Vancouver
Daniel J. Reid (he/him)— Harper Grey LLP, Vancouver

Can Litigation be Retaliation? Reprisals, Retaliation, and Human Rights Tribunal Jurisdiction Over Countersuits (2:20 – 3:00)

• what is retaliation?
• what is the purpose of statutory protections from retaliation in human rights legislation? what do they protect against?
• how have human rights tribunals dealt with retaliation claims arising from countersuits (second lawsuits against a complainant in another forum)?
• as a matter of statutory interpretation, what is the scope of s. 43 of BC's Human Rights Code?
• what are the implications of interpreting s. 43 to include/exclude countersuits?
• what insights can be drawn from the experience of other human rights tribunals in Canada? and from statutory decision-makers in BC?

Joanne Kim (she/her) — Ministry of Attorney General, Vancouver  
Joana Thackeray (she/her) — BC Human Rights Tribunal, Vancouver

BREAK (3:00 – 3:10)

Emotional Support Animals (3:10 – 4:00)

• differentiating between emotional support animals, guide and service animals, and assistance animals
• how has the BC Human Rights Tribunal adjudicated complaints relating to emotional support animals?
• how should organizations evaluate requests for emotional support animals? What are the practical difficulties with evaluating such requests?

Harmit Sarai (she/her) — Forte Workplace Law, Surrey
V. Victoria Shroff (she/her) — Shroff & Associates (Shroff Animal Law), Vancouver
Kristen Woo (she/her) — Director, Human Rights Office, Simon Fraser University, Burnaby

BC Human Rights Tribunal Update (4:00 – 4:40)

Emily Ohler (she/her) — Chair, BC Human Rights Tribunal, Vancouver

Day 2: Friday, November 4, 2022

Welcome (9:00 – 9:10)

Judicial Review Update (9:10 – 10:00)

• review and update of significant BC Supreme Court, BC Court of Appeal, and Supreme Court of Canada cases

Katherine A. Hardie (she/her) — BC Human Rights Tribunal, Vancouver
David G. Wong (he/him) — Fasken Martineau DuMoulin LLP, Vancouver

BREAK (10:00 – 10:15)

Five Years Out: The Impact of Schrenk on Human Rights Jurisprudence Across Canada (10:15 – 11:00)

• is the ratio from Schrenk being properly applied? That is, are tribunals, commissions and courts conducting a contextual analysis in order to determine if there is a sufficient nexus between the discriminatory conduct and the employment context? 
• are the concurring and dissenting reasons being considered in the application of Schrenk?
• has the decision in Schrenk been applied to other areas of discrimination, that is, beyond discrimination regarding employment?
• what impact, if any, has the decision in Schrenk had on human rights and, in particular, the volume of complaints that commissions or tribunals receive?

Daniel McBain (he/him) — Moore Edgar Lyster LLP, Vancouver 
Leanne Monsma (she/her) — Fasken Martineau DuMoulin LLP, Vancouver

Human Rights Commissioner's Inquiry and Intervention Powers Under the Human Rights Code (11:00 – 12:00)

• how the Commissioner is utilizing her inquiry powers, including:
  • how we are conducting the Commissioner's first public inquiry into hate during the COVID-19 pandemic
  • how the Commissioner has used her order powers in both the Hate Inquiry and in work related to systemic discrimination in policing
  • providing an overview of research reports for the Hate Inquiry
  • how we're addressing qualitative and quantities data and evidence when conducting inquiries
  • ways that we're trying to design Inquiry procedures in a trauma-informed and procedurally fair manner
• how the Commissioner chooses cases to intervene in and a summary of the cases she's intervened in so far

Carly Hyman (she/her) — Staff Lawyer – Inquiries and Investigations, BC's Office of the Human Rights Commissioner, Victoria
Sarah Khan, KC (she/her) — General Counsel, BC's Office of the Human Rights Commissioner, Vancouver 
Guuduniia La Boucan (she/her) — Staff Lawyer, BC's Office of the Human Rights Commissioner, Victoria

LUNCH with Featured Speaker (12:00 – 1:30)

Reconciliation in Action in the Legal Profession

Isabel (Sa-Gyo) Jackson (she/her) — Department of Justice, Vancouver

Issues in Human Rights for Trans People (1:30 – 2:20)

• gender identity and gender expression case law relating to the workplace
• elements of a gender-affirming workplace 

barbara findlay, KC (she/her) — Law Office of barbara findlay KC, Vancouver
Adrienne S. Smith (they/them) — Adrienne Smith Law, Vancouver

BREAK (2:20 – 2:35)

Group and Class Complaints (2:35 – 3:25)

• what is the criteria for a complaint to be accepted as group or class complaint?
• what are the challenges?
• review of Golden Eagle Blueberry Farm decision

Aleem S. Bharmal, KC (he/him) — Community Legal Assistance Society, Vancouver
Jonathan Blair (he/him) — Community Legal Assistance Society, Vancouver
Nazeer T. Mitha, KC (he/him) —Mitha Law Group, Vancouver

Mental Health and Performance Management: Threading the Needle (3:25 – 4:15)

• the interplay between an employer's duty to accommodate mental illness and an employer's obligation to engage in appropriate performance management
• challenges for practitioners advising both employers and employees, given the rise in mental health awareness, and in a remote work environment where identifying and accommodating mental health concerns is more difficult
• the legal issues inherent in these situations, and share practical guidance on navigating them effectively, with a particular focus on accommodation strategies

Richard B. Johnson (he/him) — Ascent Employment Law Corporation, Vancouver
Victoria Merritt (she/her) — Dentons Canada LLP, Vancouver
Dr. Jaleh Shahin, M.Ed., PhD, ABPP (she/her) — Registered Psychologist (BC, Alberta & Ontario), Board Certified in Clinical Psychology, UPsilon Clinic Inc., Vancouver 

Closing Comments (4:15 – 4:20)