January 21, 2008

Pasternak Decision Upheld

The Manitoba Human Rights Commission has successfully defended a 2006 human rights ruling.

Today the Manitoba Court of Queen’s Bench upheld the decision by Human Rights Adjudicator Lynne Harrison who found that the Manitoba High Schools Athletic Association’s rule barring girls from trying out for their high school boys’ hockey team was unreasonable sex discrimination that violated The Human Rights Code. Madame Justice Joan McKelvey agreed, and found that the MHSAA had not succeeded in justifying its position and dismissed all its arguments.

In October 2006, the MHSAA filed for a judicial review of Adjudicator Harrison’s decision.

A judicial review is a procedure where one of the parties in an administrative tribunal hearing (in this case, a Human Rights Tribunal) asks the court to review how the adjudicator interpreted the case, her jurisdiction and the fairness of the process. The MHSAA was not able to establish errors in these areas.

Executive Director of the Manitoba Human Rights Commission Dianna Scarth says, “This is another strong decision following an equally strong decision by the Adjudicator. We have always believed that Adjudicator Harrison’s ruling was solidly based on the law and evidence.”

Commission Legal Counsel Sarah Lugtig says that the Commission has always maintained that Amy and Jesse Pasternak had the right to question a rule that barred them from trying out for their boys’ high school hockey team because there was a girls’ team in the school.

In her written decision Madame Justice McKelvey dismissed the MHSAA’s approach. “The opportunity to be evaluated on the basis of merit was wrongly denied by the MHSAA because of gender…they (the Pasternaks) simply wanted to be afforded a merit-based opportunity to try out and possibly compete on the West Kildonan Collegiate Institute’s men’s team,” she wrote. She noted the clear evidence showing that the Pasternaks were competitive during the try-out sessions for the men’s team in which they had been allowed to participate.

Madame Justice McKelvey found that the MHSAA was unable to establish a single justification, based on objective evidence, for refusing the girls the opportunity to try out.

With regards to damages awarded to the Pasternak twins, Madame Justice McKelvey found that the Adjudicator’s award of damages in the amount of $3500 each was supported by the evidence and should stand citing that there are many human rights cases which have awarded such damages after a finding of discrimination.

For more information please contact:

Patricia Knipe
Communications Director
Manitoba Human Rights Commission