Bignell-Malcolm v. Ebb and Flow Indian Band

Bignell-Malcolm v. Ebb and Flow Indian Band

Tribunal found complainant established a prima facie case (qualified, applied, offered, then not hired while less qualified non‑Cree candidates remained or were hired); respondent failed to provide a credible, reasonable nondiscriminatory explanation (language requirement and timing unconvincing); discovery transcript and petition were admissible under impeachment and interests of justice exceptions; decision rescinding the offer was motivated at least in part by race/ethnic origin and therefore violated the CHRA; remedies for lost wages, pain and suffering, special compensation and specified expenses were ordered.

Citation
2008 CHRT 3
Parties
Complainant: Jean Bignell-Malcolm; Commission: Canadian Human Rights Commission; Respondent: Ebb and Flow Indian Band
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
15 January 2008
Procedural Posture
Human Rights Complaint (employment Discrimination) / Tribunal Decision Following Hearing
Outcome
Complaint substantiated; respondent found to have discriminated on grounds of race/national or ethnic origin and failed to rebut prima facie case; remedies ordered in favour of complainant.
Legal Topics
Discrimination, Race and Ethnic Origin, Language Requirement, Prima Facie Burden, Remedies, Admissibility of Discovery and Petition, Aboriginal Employment Preference, Bona Fide Occupational Requirement
Source Language
English
Human Rights Employment Law Administrative Law Evidence Law Discrimination Race and Ethnic Origin Language Requirement Prima Facie Burden +4 more

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Parties

Jean Bignell-Malcolm

Complainant

Canadian Human Rights Commission

Commission

Ebb and Flow Indian Band

Respondent

Procedural Posture

Human Rights Complaint (employment Discrimination) / Tribunal Decision Following Hearing

Legal Issues

  1. 1 Whether complainant established a prima facie case of discrimination in refusal to hire
  2. 2 Whether respondent provided a reasonable non‑discriminatory explanation for rescinding offer
  3. 3 Admissibility of discovery transcript and petition obtained in civil litigation

Ratio Decidendi

Tribunal found complainant established a prima facie case (qualified, applied, offered, then not hired while less qualified non‑Cree candidates remained or were hired); respondent failed to provide a credible, reasonable nondiscriminatory explanation (language requirement and timing unconvincing); discovery transcript and petition were admissible under impeachment and interests of justice exceptions; decision rescinding the offer was motivated at least in part by race/ethnic origin and therefore violated the CHRA; remedies for lost wages, pain and suffering, special compensation and specified expenses were ordered.

Court Disposition

Complaint substantiated; respondent found to have discriminated on grounds of race/national or ethnic origin and failed to rebut prima facie case; remedies ordered in favour of complainant.

Orders

  • Award compensation for lost wages (difference between income actually received and income she would have earned as Director of Education from August 1, 2003 to December 31, 2006, excluding May–December 2004)
  • Award $7,000.00 for pain and suffering