Same-Sex Care (Resident Rights)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	2442
Page Categories:	[Care Homes (LTB)]
Citation:	Same-Sex Care (Resident Rights), CLNP 2442, <>, 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)

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.