Harkin v. Canada (Attorney General)

Harkin v. Canada (Attorney General)

The Tribunal cannot, as a general matter, dismiss a CHRA complaint without a hearing for failure to disclose a prima facie case because it lacks inherent jurisdiction to perform a second screening absent express statutory authority; applying the Hunt v. Carey test, it is not plain and obvious that the s.10 claim will fail on the pleadings, so the motion to dismiss is denied, but further particulars are ordered and the amendment to add s.7 is permitted.

Citation
2009 CHRT 6
Parties
Complainants: Richard Harkin et al.; Commission: Canadian Human Rights Commission; Respondent: Attorney General (Canada)
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
18 February 2009
Procedural Posture
Human Rights Complaint (canadian Human Rights Act) / Pre Hearing: Motions to Dismiss and to Amend; Ruling Issued
Outcome
Motion to dismiss denied; motion to amend to add s.7 granted; further particulars ordered.
Legal Topics
Pay Equity, Wage Discrimination, Section 10 CHRA, Section 7 CHRA, Section 11 CHRA, Employer Identity, Motion to Dismiss, Amendment of Complaint
Source Language
English
Human Rights Employment Law Administrative Law Pay Equity Wage Discrimination Section 10 CHRA Section 7 CHRA Section 11 CHRA +3 more

Case Brief

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Parties

Richard Harkin et al.

Complainants

Canadian Human Rights Commission

Commission

Attorney General (Canada)

Respondent

Procedural Posture

Human Rights Complaint (canadian Human Rights Act) / Pre Hearing: Motions to Dismiss and to Amend; Ruling Issued

Legal Issues

  1. 1 Whether Tribunal may dismiss a CHRA complaint without a hearing for failure to disclose a prima facie case
  2. 2 Whether s.10 CHRA's concept of "employment opportunity" can encompass wages and benefits
  3. 3 Whether the refusal to extend pay equity adjustments constitutes a policy or practice under s.10

Ratio Decidendi

The Tribunal cannot, as a general matter, dismiss a CHRA complaint without a hearing for failure to disclose a prima facie case because it lacks inherent jurisdiction to perform a second screening absent express statutory authority; applying the Hunt v. Carey test, it is not plain and obvious that the s.10 claim will fail on the pleadings, so the motion to dismiss is denied, but further particulars are ordered and the amendment to add s.7 is permitted.

Court Disposition

Motion to dismiss denied; motion to amend to add s.7 granted; further particulars ordered.

Orders

  • Motion to dismiss the complaint is dismissed (i.e. denied)
  • Motion to amend the complaint to include allegations under s.7 CHRA is granted