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Supreme Court ruling could change how human rights law is applied in Quebec

MONTREAL — 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.
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MONTREAL — 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 "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 would makeQuebec'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 all 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 in a recent interview.

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.

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This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.

Jacob Serebrin, The Canadian Press