Same-Sex Care (Resident Rights): Difference between revisions

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<b><u>[143] Accordingly, it may be concluded that section 1 of the Charter does not protect only the physical aspect of inviolability, but also its psychological, moral and social aspects.</b></u>
<b><u>[143] Accordingly, it may be concluded that section 1 of the Charter does not protect only the physical aspect of inviolability, but also its psychological, moral and social aspects.</b></u>
...
[177] According to the arbitration jurisprudence, failure to comply with requests to establish gender requirements for positions constitutes a violation of the fundamental right of patients to be given intimate care by a beneficiary attendant of their own sex. The arbitrators found gender requirements to be reasonable and rational, on the basis of the preferences expressed by users.<ref name="44-A"/> Moreover, all patients did not have to express a desire to be given intimate care by a person of their own sex in order to justify the establishment of gender requirements for a given position.<ref name="45-A"/>




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<ref name="15-A">Canadian Charter of Rights and Freedoms, Canada Act, 1982, Schedule B, 1982, c. 11 (U.K.), Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".</ref>
<ref name="15-A">Canadian Charter of Rights and Freedoms, Canada Act, 1982, Schedule B, 1982, c. 11 (U.K.), Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".</ref>
<ref name="16-A">Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 at 588.</ref>
<ref name="16-A">Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 at 588.</ref>
<ref name="44-A">Syndicat professionnel des infirmiers et infirmières de Chicoutimi and Centre hospitalier de Jonquière, supra note 43 at 10; Manoir de la Providence v. Union des employés de service, local 298 (F.T.Q.), supra note 43 at 11; Union des employés de service, section locale 298 (F.T.Q.) and Centre hospitalier Cloutier, supra note 43 at 13; Foyer Joseph-Denys Inc. and Syndicat canadien de la fonction publique, supra note 43 at 13; Centre hospitalier de l’Université Laval and Syndicat des employés du Centre hospitalier de l’Université Laval (S.C.F.P.), supra note 43 at 18; Accueil Notre-Dame-du-Bon-Conseil v. Union des employés de service, section locale 298, supra note 43 at 21; Syndicat des employés d’hôpitaux d’Arthabaska v. Hôtel-Dieu d’Arthabaska, supra note 43 at 36; Centre d’accueil Villa Pabos v. Syndicat des employés(es) de Centre d’accueil Villa Pabos, supra note 43 at 5; Syndicat national des employés de l’hôpital St-Ferdinand v. Hôpital St-Julien, supra note 43 at 20; Syndicat national des employés de l’hôpital St-Ferdinand and Hôpital St-Julien, supra note 43 at 32; Syndicat national des employés de l’Hôpital St-Ferdinand v. Hôpital St-Julien, supra note 43 at 27; Syndicat national des employés de l’Hôpital St-Ferdinand v. Hôpital St-Julien, supra note 43 at 33.</ref>
<ref name="45-A">Syndicat national des employés de l’hôpital St-Ferdinand and Hôpital St-Julien, supra note 43 at 29-30.</ref>


==References==
==References==

Revision as of 19:52, 19 November 2024


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2024-11-22
CLNP Page ID: 2442
Page Categories: [Care Homes (LTB)], [Human Rights]
Citation: Same-Sex Care (Resident Rights), CLNP 2442, <https://rvt.link/e6>, retrieved on 2024-11-22
Editor: Sharvey
Last Updated: 2024/11/19

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McKale v. Lamont Auxilliary Hospital & Nursing Home District No.23, 1987 CanLII 3341 (AB KB)[1]

Summary: The Court rejects an appeal by Anne McKale from a decision by a Board of Inquiry (1986 CanLII 6545 (AB HRC), 8 C.H.R.R. D/3659) which found that she was not discriminated against because of her sex when she was refused a position as a temporary nursing assistant.

Ms. McKale applied for the position of temporary nursing assistant with Lamont Auxiliary Hospital and was refused in May 1985. The position was given to a less experienced male because the Hospital wished to replace a male attendant who had resigned with another male. The Board of Inquiry accepted the Hospital's argument that being of the male sex was a bona fide occupational qualification for the position because some of the male residents specifically requested that they be given intimate care by a person of the same sex. Since the staff ratio was ten females to three males, the Board considered that the Hospital was not violating the Individual's Rights Protection Act by maintaining this female/male ratio.

The Court confirms the Board of Inquiry decision, and the appeal is dismissed.

...

[45] My conclusion upon applying the objective test to the evidence is the same as that of Mr. Stewart, but it is more broadly based. I conclude on all of the evidence that the claim by a patient in an auxiliary hospital for intimate, personal care to be given by a nursing attendant of the same sex has a basis in his contract with the institution, in public expectations and is reasonable in the opinion of experts based on their research and experience in the area. The claim must, so far as possible, be met by the respondent not only to assure the efficient and economical performance of its job but to fulfill its obligations to the patient to treat him with respect and dignity.

[46] I find that the respondent's selection of a male for the position of nursing attendant was based on a bona fide occupational requirement pursuant to section 7(3) of the Individual's Rights Protection Act. Unlike the Chairman, I find that in this case the occupational group is composed of all nursing attendants. All that I have said supports the need to allow for adaptability of an institution to reflect the nature of its patient population and their needs.

[47] I find there is no necessity to interpret section 11.1 of the Act.



[1]

Commission des droits de la personne et des droits de la jeunesse c. Hôpital général juif Sir Mortimer B. Davis, 2007 QCTDP 29 (CanLII)[2]

3.1 The rights of patients

[138] The scope of the right of patients to receive intimate care from a beneficiary attendant of their own sex is based first and foremost on the fundamental rights guaranteed by the Charter, such as inviolability, the right to respect for one's private life and the right to freedom of religion. In addition, rules are set forth in the Act respecting health services and social services.[10] I will come back to them later.

...

3.1.1 The right to inviolability

[139] In the 1982 legislative amendments, the term "physique", which had modified the word "intégrité" in the French version of section 1 of the Charter, was deleted.[3]

[140] In Dufour,[4] reiterating the reasons of Wilson J. in Morgentaler,[5] the Tribunal analysed the concept of inviolability, as amended:

[TRANSLATION]
… the right to inviolability more specifically concerns respect for personal autonomy in decision-making regarding matters closely tied to a person's fundamental values and convictions. It is therefore a patient's right to receive personal care from someone of the same sex.

[141] In Hôpital St-Ferdinand,[6] the Supreme Court clarified the meaning to be ascribed to "inviolability", as set forth in the Charter:

… s. 1 [of the Charter] refers inclusively to physical, psychological, moral and social inviolability.
The common meaning of the word "inviolability" suggests that the interference with that right must leave some marks, some sequelae which, while not necessarily physical or permanent, exceed a certain threshold.

[142] It is also interesting to note that, when called on to interpret the meaning of the right to security under section 7 of the Canadian Charter,[7] the Supreme Court ruled that the principle of security of the person encompassed the concept of inviolability and, more specifically, respect for autonomy in decision-making. In Rodriguez,[8] Sopinka J. wrote:

… personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.

[143] Accordingly, it may be concluded that section 1 of the Charter does not protect only the physical aspect of inviolability, but also its psychological, moral and social aspects.

...

[177] According to the arbitration jurisprudence, failure to comply with requests to establish gender requirements for positions constitutes a violation of the fundamental right of patients to be given intimate care by a beneficiary attendant of their own sex. The arbitrators found gender requirements to be reasonable and rational, on the basis of the preferences expressed by users.[9] Moreover, all patients did not have to express a desire to be given intimate care by a person of their own sex in order to justify the establishment of gender requirements for a given position.[10]


[3] [2] [6] [4] [5] [7] [8] [9] [10]

References

  1. ↑ 1.0 1.1 McKale v. Lamont Auxilliary Hospital & Nursing Home District No.23, 1987 CanLII 3341 (AB KB), <https://canlii.ca/t/28ldx>, retrieved on 2024-11-19
  2. ↑ 2.0 2.1 Commission des droits de la personne et des droits de la jeunesse c. Hôpital général juif Sir Mortimer B. Davis, 2007 QCTDP 29 (CanLII), <https://canlii.ca/t/1vjd4>, retrieved on 2024-11-19
  3. ↑ 3.0 3.1 Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, s. 1.
  4. ↑ 4.0 4.1 Dufour v. Centre hospitalier St-Joseph-de-La-Malbaie, 1992 CanLII 11 (QC TDP), [1992] R.J.Q. 825 (H.R.T.Q.) at 840; appeal allowed for other reasons, see: J.E. 98-2178; 1998 CanLII 13115 (QC CA), REJB 1998-08817 (C.A.). Leave to appeal to the Supreme Court denied: [1999] 3 S.C.R., vii. Although the Tribunal's decision was set aside by the Court of Appeal on the ground that the seisin of the Tribunal by the complainant was invalid, the rules stated in the decision are nonetheless relevant to the analysis of the present case.
  5. ↑ 5.0 5.1 R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30 at 163 ff.
  6. ↑ 6.0 6.1 (Quebec) Public Curator v. Syndicat National des employés de l’Hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 S.C.R. 211 at paras. 95 and 97.
  7. ↑ 7.0 7.1 Canadian Charter of Rights and Freedoms, Canada Act, 1982, Schedule B, 1982, c. 11 (U.K.), Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".
  8. ↑ 8.0 8.1 Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519 at 588.
  9. ↑ 9.0 9.1 Syndicat professionnel des infirmiers et infirmières de Chicoutimi and Centre hospitalier de Jonquière, supra note 43 at 10; Manoir de la Providence v. Union des employés de service, local 298 (F.T.Q.), supra note 43 at 11; Union des employés de service, section locale 298 (F.T.Q.) and Centre hospitalier Cloutier, supra note 43 at 13; Foyer Joseph-Denys Inc. and Syndicat canadien de la fonction publique, supra note 43 at 13; Centre hospitalier de l’Université Laval and Syndicat des employés du Centre hospitalier de l’Université Laval (S.C.F.P.), supra note 43 at 18; Accueil Notre-Dame-du-Bon-Conseil v. Union des employés de service, section locale 298, supra note 43 at 21; Syndicat des employés d’hôpitaux d’Arthabaska v. Hôtel-Dieu d’Arthabaska, supra note 43 at 36; Centre d’accueil Villa Pabos v. Syndicat des employés(es) de Centre d’accueil Villa Pabos, supra note 43 at 5; Syndicat national des employés de l’hôpital St-Ferdinand v. Hôpital St-Julien, supra note 43 at 20; Syndicat national des employés de l’hôpital St-Ferdinand and Hôpital St-Julien, supra note 43 at 32; Syndicat national des employés de l’Hôpital St-Ferdinand v. Hôpital St-Julien, supra note 43 at 27; Syndicat national des employés de l’Hôpital St-Ferdinand v. Hôpital St-Julien, supra note 43 at 33.
  10. ↑ 10.0 10.1 Syndicat national des employés de l’hôpital St-Ferdinand and Hôpital St-Julien, supra note 43 at 29-30.
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