Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, October 29, 2021, the Supreme Court of Canada is releasing its decision in Mike Ward v. Commission des droits de la personne et des droits de la jeunesse. At issue is whether comments made in a comedy routine can be discriminatory under Quebec’s Charter of human rights and freedoms or whether they are justified as free speech.

As part of a stand-up routine, comedian Mike Ward used dark humour to “deflate” what he called the “sacred cows” of Quebec’s artistic milieu in reference to a number of prominent public figures. One of his subjects was Jérémy Gabriel, a young man with Treacher Collins Syndrome who had become famous by singing for well-known public figures. In his routine, Ward made a number of comments relating to the physical characteristics of Gabriel caused by his handicap. Gabriel and his parents filed a complaint of discrimination with the Commission des droits de la personne et des droits de la jeunesse. The Commission submitted an application to the Human Rights Tribunal. The Tribunal concluded that Ward’s comments were discriminatory under Quebec’s Charter of human rights and freedoms. It held that the comments violated Gabriel’s right to dignity and that the violation was not justified by Ward’s right to freedom of expression. The Tribunal awarded damages for moral injury and punitive damages to Gabriel and to his mother.

The majority of the Court of Appeal allowed Ward’s appeal in part. It held that in balancing Gabriel’s right to dignity with Ward’s right to freedom of expression, the Tribunal was reasonable in concluding that Ward’s comments surpassed what could reasonably be tolerated by Gabriel. However, it quashed the order awarding damages to Gabriel’s mother, finding that she was not subjected to discrimination. A dissenting judge would have allowed the appeal in full. She found that the Tribunal’s conclusion that the comments were discriminatory was not reasonable.

Ward was granted leave to appeal to the SCC. He argued that political or artistic speech mentioning or mocking personal characteristics does not amount to discrimination warranting intervention by the Human Rights Tribunal. And in any event, his comedy routine was justified as free speech. Canadians don’t have a right not to be offended, and making fun of someone doesn’t take away their rights. Gabriel argued that Ward’s joke went too far and had long-lasting consequences on the disabled man’s life. He argued the case wasn’t about morality or taste but discrimination.

Last SCC Decision

Nelson (City) v. Marchi

  • On Oct. 21, 2021, the SCC released Nelson (City) v. Marchi, 2021 SCC 41.
  • The Court unanimously dismissed the City’s appeal, ruling that it can be held responsible for injuries caused by its snow clearing decisions.
  • Core policy decisions are decisions as to a course or principle of action based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. Core policy decisions are immune from negligence liability because the legislative and executive branches have core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight.
  • However, operational decisions to carry out a policy are not policy decisions. The City’s snow clearing decision, in this case, was not a core policy decision. Rather, the decision was operational and not immune from a negligence claim.

Northern Regional Health Authority v. Horrocks

  • On Oct. 22, 2021, the SCC released Northern Regional Health Authority v. Horrocks, 2021 SCC 42. The Court allowed the appeal, with Justice Karakatsanis in dissent.
  • The Court ruled that an employment discrimination dispute involving a unionized worker should be settled by a labour arbitrator appointed under the collective agreement, not by a human rights adjudicator.
  • Where labour legislation provides for the final settlement of disputes arising from a collective agreement, the jurisdiction of the decision‑maker empowered by that legislation is exclusive.
  • In this case, the essential character of Horrocks’s complaint arose from the employer’s exercise of its rights under and from its alleged violation of the collective agreement. Alleging a human rights violation was not sufficient to displace the exclusive jurisdiction of the labour arbitrator.

-Tom Slade