Nova Scotia Human Rights Commission disappointed as Supreme Court refuses to hear appeal of the ‘kemosabe’ case
The Supreme Court of Canada has refused to hear an appeal of the 'kemosabe' case. The case made headlines late last year after a board of inquiry of the Nova Scotia Human Rights Commission spent an entire day watching reruns of the Lone Ranger to determine whether or not kemosabe was a racist term.
Mayann Francis, chief executive officer of the commission, said she was disappointed by the high court's decision not to hear the appeal because she hoped it would clear up some ambiguous areas in employment law around harassment and diversity.
"We had hoped the Supreme Court of Canada would provide legal guidance not just for Nova Scotians but for all Canadian workplaces," she said. "The standards have already been set for sexual harassment. We thought this case might help establish clearer guidelines for dealing with discrimination and the cultural differences one finds in a diverse workplace."
The case involved Dorothy Moore, a Mi'kmaq woman who worked at Play it Again Sports in Sydney, N.S. She filed a complaint with the human rights commission in 1999 alleging the owner and a co-worker had discriminated against her when they called her kemosabe.
An independent board of inquiry of the Nova Scotia Human Rights Commission looked into Moore's complaint. It ruled there was no discrimination because Moore had not clearly shown she was offended by the remark.
The commission appealed that ruling to the Nova Scotia Court of Appeal, arguing the board of inquiry had put an undue burden on Moore to prove she found the term kemosabe offensive. But the Court of Appeal rejected that argument, stating that Moore had not shown the term was “notoriously offensive.”
Ann Smith, legal counsel for the commission, hoped the Supreme Court would clarify that term.
"People need to understand what that phrase means in order to determine what is or is not considered acceptable behaviour in the workplace," said Smith. "What I consider 'notoriously offensive' you may not. We wanted some legal standard that would help people."
The Supreme Court, as is usual when it dismisses an appeal, did not give a reason for doing so. Francis said the commission will explore other ways of clarifying what's inappropriate in the workplace.
"This is about much more than the use of one word," she said. "It's about establishing standards that are clear to employers and to employees, standards that protect and encourage diversity and that protect every person's rights under the (legislation.)"
Mayann Francis, chief executive officer of the commission, said she was disappointed by the high court's decision not to hear the appeal because she hoped it would clear up some ambiguous areas in employment law around harassment and diversity.
"We had hoped the Supreme Court of Canada would provide legal guidance not just for Nova Scotians but for all Canadian workplaces," she said. "The standards have already been set for sexual harassment. We thought this case might help establish clearer guidelines for dealing with discrimination and the cultural differences one finds in a diverse workplace."
The case involved Dorothy Moore, a Mi'kmaq woman who worked at Play it Again Sports in Sydney, N.S. She filed a complaint with the human rights commission in 1999 alleging the owner and a co-worker had discriminated against her when they called her kemosabe.
An independent board of inquiry of the Nova Scotia Human Rights Commission looked into Moore's complaint. It ruled there was no discrimination because Moore had not clearly shown she was offended by the remark.
The commission appealed that ruling to the Nova Scotia Court of Appeal, arguing the board of inquiry had put an undue burden on Moore to prove she found the term kemosabe offensive. But the Court of Appeal rejected that argument, stating that Moore had not shown the term was “notoriously offensive.”
Ann Smith, legal counsel for the commission, hoped the Supreme Court would clarify that term.
"People need to understand what that phrase means in order to determine what is or is not considered acceptable behaviour in the workplace," said Smith. "What I consider 'notoriously offensive' you may not. We wanted some legal standard that would help people."
The Supreme Court, as is usual when it dismisses an appeal, did not give a reason for doing so. Francis said the commission will explore other ways of clarifying what's inappropriate in the workplace.
"This is about much more than the use of one word," she said. "It's about establishing standards that are clear to employers and to employees, standards that protect and encourage diversity and that protect every person's rights under the (legislation.)"
