Here’s a little bit about André’s case:
He was suspended from his job on January 24, 2022 for refusing to disclose his personal medical information to the employer and his employer believed he went against the vaccination policy.
André fought this at the Social Security Tribunal on May 25, 2023 and it's worth noting that on June 8, 2023, the Social Security Tribunal General Division, adjudicator Marisa Victor has determined that the Employment Insurance Commission hasn’t proven that André was suspended from his job because of misconduct or non-compliance in File Number GE-22-3918. This undermined the employer's argument that he would face consequences because of his "misconduct". Here's what adjudicator Marisa Victor wrote in her decision:
“ I find that the Commission hasn’t proven that there was misconduct because the Appellant could not have known or could not reasonably have known that he could be suspended because of his conduct.”
“ In this case, there is no indication that the Appellant deliberately violated the employer’s policy before he was suspended on January 24, 2022. Up to that point the Appellant had followed the steps in the policy to apply for an exemption and had supplied his manager with the reasons for that request in accordance with the policy. This tells me that the Appellant attempted to comply with the policy.
After his Social Security Tribunal hearing, André later went to the Federal Court of Canada on June 1st for a Judicial Review regarding his case T-2385-22 regarding discrimination.
He received the decision from the judge on June 19, 2023 in favor of the employer and he is now looking to appeal that erroneous decision at the Federal Court of Appeal but he needs our help to help him cross the finish line.
According to the Federal Court Acts section 27 (2) b, he has 30 days to appeal which would bring him to July 18th, however it also says not counting July and August.
27 (2) An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Federal Court of Appeal
b) in any other case, within 30 days, not including any days in July and August, after the pronouncement of the judgment or determination appealed from or within any further time that a judge of the Federal Court of Appeal may fix or allow before or after the end of those 30 days.
That would bring him to September 18, 2023 for the appeal deadline.
André’s original complaint submitted to the Canadian Human Rights Commission was never sent to the Canadian Human Rights Tribunal for a proper hearing as the Canadian Human Rights Commission said his claim was frivolous. They claimed that he had no grounds of discrimination. He explained to them that it was based on the grounds of “genetic characteristics” and “partial disability”.
His union, the Human Rights Officer, the Human Rights Decision Maker, the federal court judge, etc all erred by using a “narrow health-based definition of genetic tests” as opposed to the genetic characteristics definition of the CHRA which covers a "broader range of genetic information bearing on non-health related matters".
Up to now, he has been self-representing, but he feels like things are getting more formal and less room for (beginner, amateur) mistakes. He would hate to lose on a procedural technicality. We strongly believe his case could set a powerful new legal precedent as there is no jurisprudence regarding his specific case.
He is now contemplating legal representation for his my appeal. Due to the financial hardship he has experienced and as a new parent of two beautiful girls (3 and 2 years old) he is budget conscious and is looking for help to raise the funds needed to pay for legal services. He was quoted around 25k upfront, to be placed in the lawyer’s trust account.
These legal expenses will be in regards to:
- Evaluation and Review of the federal court judge’s decision on his case
- Write the notice of appeal.
- The memorandum of fact and law.
- Representing him during court.
- And anything else required by the Court.
Here’s the premises of his argument:
Question of law, is the genetic test referred in the Canadian Human Rights Act a “narrow health-based definition of genetic tests” or a “broader range of genetic information bearing on non-health related matters”?
This is where he believes that the persons acting on behalf of the department, union, CHRC Complaints Services division, Human Rights Officer, the Canadian Human Rights Commission and the federal court judge did not fully understand the difference between section 1 to 7 of the GNDA which uses a “narrow health-based definition of genetic tests” in contrast with section 8 to 10 of the GNDA (which amends the CHRA). The genetic characteristics definition of the CHRA covers a broader range of genetic information bearing on non-health related matters, is protected and is not limited to a narrow health-based definition of genetic tests.
Prohibited grounds of discrimination: Genetic Characteristics
Section 3 (3) of the CHRA: “Where the ground of discrimination is refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics.”
 The amendments to the CHRA also encompass a broader range of genetic information than ss. 1 to 7. First, since no definition is provided for “genetic characteristics”, the protection is not limited to a narrow health-based definition of genetic tests. Second, by protecting “genetic characteristics” rather than information disclosed by genetic tests, the amendments to the CHRA include genetic information obtained through other means. The deeming provision supports this interpretation: the CHRA specifically ensures that one cannot be forced to undergo a genetic test and that results of a genetic test cannot be forcibly disclosed, which does not preclude the fact that a broader range of genetic information is protected. The broad purview of the CHRA goes to show, in my respectful view, that ss. 1 to 7 also cannot be characterized in pith and substance as protecting individuals’ control over private information. https://canlii.ca/t/j8l59#par191
 The contrast between the amendments to the CHRA and the CLC, which create prohibitions against discrimination, and the impugned provisions, which do not, shows that the purpose of ss. 1 to 7 is different from that of these amendments. If Parliament had attempted to take a coordinated approach to genetic discrimination in the Act, discrimination on the basis of genetic characteristics would have been directly prohibited in the impugned provisions, and not only in the CHRA and CLC. So, as the Court of Appeal recognized, while the impugned provisions may offer, to some extent, limited control to individuals over their genetic information, they do not reduce their fears surrounding genetic testing in any real measure, since the impugned provisions do nothing to prohibit genetic discrimination.
“ Despite the title of the Act, the pith and substance of its sections 1 to 7 is not to prohibit genetic discrimination. In fact, contrary to section 9 to 11 of the Act, which amend the Canadian Human Rights Act to incorporate genetic characteristics as a prohibited ground of discrimination within the purview of matters falling under the legislative authority of Parliament, sections 1 to 7 do not pertain to genetic discrimination and do not prohibit it. These provisions rather aim at prohibiting the access to information obtained through genetic testing, without forbidding the use of genetic information that may be disclosed voluntary or that may be required or obtained through other means, such as family history or medical tests of another nature. Nor do these sections prohibit genetic discrimination that could result from the use of such information. On the whole, however, they render more difficult access to and use of such information.” https://canlii.ca/t/hwt15#par10
“ Indeed, as aforementioned, sections 1 to 7 of the Act do not prohibit genetic discrimination. In fact, the prohibition of discrimination based on genetic characteristics appears only in sections 9 and 10 of the Act, which modify sections 2 and 3 of the Canadian Human Rights Act to include genetic characteristics as a prohibited ground of discrimination within the purview of matters falling under the legislative authority of Parliament. On the other hand, sections 1 to 7 of the Act prohibit requiring a genetic test or the disclosure or use of the results in the conclusion of a contract or in the provision of goods and services, except where consent is given. Section 8 of the Act amends the Canada Labour Code in the same manner, while providing the employee with a specific recourse in the case where he or she is sanctioned for refusing to undergo a genetic test at the request of the employer or for refusing to disclose the results of such a test or because of the results of the test. It does not however prohibit discrimination on the basis of genetic characteristics, which is left to be dealt with under the Canadian Human Rights Act.” https://canlii.ca/t/hwt15#par20
Thank you for your support!