The Phipps case has made some waves in the Human Rights world, and has now reached the Ontario Court of Appeal. It would not surprise me at all if the Supreme Court agrees to hear it, though, due to the size of those waves.
The Facts
Mr. Shaw is a police officer. Mr. Phipps is a Canada Post employee, and happens to be black. Shaw was patrolling an affluent neighbourhood with an officer trainee. Shaw regularly patrolled that neighbourhood. Phipps was delivering mail in the area, but this was not his regular route.
Shaw recognized that Phipps was not the ordinary mail carrier for the area, and began observing him, and became particularly suspicious when he saw Phipps knock on the door of one house and converse with a homeowner; Shaw then sent the officer trainee to the door afterward to inquire about the conversation, and the homeowner said that Phipps had been inquiring about misdelivered mail. Shaw was doubtful, and was concerned that the postal uniform might just be a ruse.
Accordingly, he stopped Phipps, questioned him, and ran his name through a criminal records search. Nothing adverse came up, so he allowed Phipps to continue delivering the mail, but continued making inquiries, including asking another postal carrier in the area about Phipps' identity.
Phipps brought an application against the police for discrimination.
The Human Rights Tribunal Decision
The hearing was bifurcated. In the Tribunal's decision on liability, the Tribunal determined that race - an African Canadian being present in an affluent neighbourhood - at least contributed to Shaw's actions, whether consciously or subconsciously.
In the decision on remedy, the Tribunal ordered the Respondents to pay Mr. Phipps $10,000.
The Divisional Court
Applications were made to the Divisional Court for judicial review of the decision. There were a number of grounds, but it seems to me that the best one for discussion is that of the 'prima facie case'. Essentially, in a case of this nature, an applicant has to lead evidence capable of supporting a conclusion that unlawful discrimination occurred, and then the onus falls upon the respondent to rebut the evidence, in part by establishing non-discriminatory reasons for the actions in question.
The Tribunal jumped awfully quickly to concluding that a prima facie case had been established, and went to sorting through the non-discriminatory explanations to show why they were not credible. It is concerning. I recognize the unpleasant reality of racial profiling, but I feel that it is no more desireable to presume that every interaction between police and racial minorities are motivated by race.
The majority of the Divisional Court found that that the Tribunal's conclusions were entitled to deference, and dismissed the applications. However, a compelling dissent by Justice Nordheimer drew out the problems with the Tribunal's analysis, including on the absence of a clear prima facie case, but also on flaws in the Tribunal's reasoning for rejecting the non-discriminatory explanations.
Shaw identified several reasons that he found Phipps suspicious, engaging in behaviours which he thought strange of a legitimate postal carrier. He knew that criminals occasionally posed in uniforms to prepare for criminal activities, and was concerned that this was a possibility. There were rational explanations for these purportedly strange behaviours, but the Tribunal's decision sometimes blurred the line between the existence of these explanations and Shaw's awareness of them. The question is not whether Phipps was planning to burgle a house - we can be reasonably confident that this wasn't going on. The question is why Shaw suspected this as a possibility, and to that extent a reasonable explanation beyond his knowledge at the time cannot inform the analysis. For example, Phipps knocked on a door to ask about misdelivered mail...and the homeowner told Mr. Phipps that she had received misdelivered mail the previous day, but had taken the mail to the correct address. That makes the 'misdelivered mail' explanation seem pretty credible. But the trouble is that Shaw didn't know that much. The officer trainee, Constable Noto, knocked on the door, and was told that Phipps had been inquiring about misdelivered mail. Noto then returned to Shaw and told Shaw that. And only that. But the Tribunal rejected Shaw's explanation of this reason for being suspicious because of the other information of which he was not aware. This is of concern to Justice Nordheimer.
The Court of Appeal
The Court of Appeal recently released this decision, upholding the decision of the majority of the Divisional Court.
The argument, again, goes that the adjudicator failed to properly assess the question of whether or not the prima facie case was properly made, and whether or not the onus was improperly reversed.
The Court of Appeal noted that there were three facts contributing to the prima facie case: Shaw questioned Phipps despite the fact that Phipps did not fit the description of persons suspected of criminal activity in the area; Shaw did not question other white contractors/service providers in the same neighbourhood; Shaw subsequently asked a white letter carrier about Phipps.
The Court of Appeal then notes that the Tribunal is entitled to deference in terms of the conclusions it draws from those facts.
Of course, there are problems with those facts - only the second one is even capable of supporting an inference of racial discrimination, and that's pretty tenuous unless you can draw direct comparisons. If a police officer sees something he thinks is suspicious in an affluent neighbourhood, we don't expect him to think, "Well, that's not the burglar we're looking for, so let's ignore him." There are plenty of reasons why you might suspect one person and not another, and race ought to be pretty far down the list for any half-decent police officer. And if you doubt the bona fides of a person in a Canada Post uniform, it kind of makes sense to ask the next Canada Post person you see about it. Now, if there were evidence that Shaw had passed other racial minority postal workers until he found a white one, that would be something. But that's not the evidence.
Regardless, is that enough to satisfy an adjudicator, on a balance of probabilities, that Shaw's intentions were discriminatory? This is a tricky part. The appellants argued that that the adjudicator should have had to find that the prima facie case had been met before calling upon Shaw to present his case, and that requiring him to present a non-discriminatory explanation without so finding is a reversal of the onus.
The Court of Appeal sidesteps this. Procedurally, there's no reason for the adjudicator to have to rule twice on the same question. That's probably true, though in most settings it's possible to move for non-suit or summary judgment if the party bearing the onus has failed to meet it, without prejudicing your ability to present your own case. (It seldom happens in civil proceedings, because if a prima facie case can't be met, the case should never get to a trial.) Then, when ruling at the end of the hearing, the question for the Tribunal to answer is whether or not it's more likely than not that Shaw's actions were motivated in whole or in part by Phipps' race.
I'm concerned about that analysis, because it really does look like an end-run around the burden of proof. It forces respondents to make a strategic decision: Do we decline to lead evidence, let the applicant's evidence go uncontradicted, and simply argue that the applicant hasn't met its burden? Or do we lead our evidence, and risk allowing the applicant to satisfy deficiencies in its case through cross-examination?
That doesn't support a just process, for a couple of reasons. First of all, it encourages applications with a marginal chance of success, by suggesting that an applicant may not have to prove his case to succeed. Secondly, it will result in more cases being decided differently based on strategy rather than on evidentiary merits in accordance with legal principles.
A party bearing the burden of proof should never be able to go on a fishing expedition at the hearing. (In civil trial processes, fishing expeditions are frowned upon even at the discovery stages. You need to make provable allegations supporting your cause of action. You're entitled to documentary disclosure, but this doesn't entitle a party to make broad allegations to seek evidence of wrongdoing they don't already know about.)
If this sort of question arose in a Court proceeding (in theory; this couldn't happen exactly as it is, for jurisdictional reasons), here's what would happen: I would allege that you discriminated against me; we would exchange documents and attend at examinations for discovery. You would explain your non-discriminatory bases for your conduct, and though they might not be credible, they wouldn't stand as admissions of wrongdoing. I would explain my basis for believing that you discriminated against me - you didn't question that guy, and he isn't of the same race as me. You would then bring a motion for summary judgment dismissing my action, on the basis that I can't prove my case. And you'd likely succeed.
The other ground of appeal, also rejected by the Court of Appeal, is that the adjudicator failed to properly consider Shaw's evidence in light of his position as a police officer, and that a degree of deference should be afforded to police officers to use discretion in carrying out their duties.
This is why the decision is concerning: It means that every exercise of police discretion will be open to review by the Human Rights Tribunal. Every time a police officer decides to investigate this person but not that person, to charge this person but not that person, to question this person but not that person, the officer will have to provide and articulate sufficient reasons for exercising discretion in such a manner that the Tribunal can be completely satisfied that prohibited grounds of discrimination did not factor into the decision-making process.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Showing posts with label judicial review. Show all posts
Showing posts with label judicial review. Show all posts
Friday, March 16, 2012
Tuesday, February 21, 2012
Lawyers Failed to Establish Prima Facie Case of Discrimination
In December 2010, the HRTO released its decision in Pieters v. Peel Law Association, finding that the Association's administrator/librarian, Melissa Firth, discriminated against two racialized lawyers, Pieters and Noble, because of their race.
Essentially, there was a heated argument in May 2008 which followed from Firth asking Pieters and Noble for identification in the lawyer's lounge. She explained that she frequently questions people that she doesn't recognize. The Tribunal noted that there were several people in the lounge at the time that she wouldn't have known, and inferred from this that the decision to stop Pieters and Noble was based on their race. The Tribunal felt that Firth's non-discriminatory explanations did not overcome this inference, and that it was likely that the decision to question them was at least partly based on race.
"Racial profiling" is a very difficult issue in human rights, involving legitimate and legal scrutiny applied in unfair measure to one group. When a police officer questions one individual but not another, detains one individual but not another, tickets one individual but not another, these are all ostensibly permissible exercises of police discretion...yet if the discretion is used in whole or in part because of race, it will violate the Human Rights Code.
This case is in some ways similar, though the Divisional Court downplayed the similarities when it recently allowed an Application for judicial review, on the basis that the Tribunal erred in its assessment of whether or not there was a prima facie case. Where a distinction has been made, it falls to the person asserting discrimination to establish the link between the treatment and a prohibited ground of discrimination. The Divisional Court felt that the Tribunal reversed this burden of proof by inferring the link from the absence of non-discriminatory explanation.
In any event, the Divisional Court found, there were findings of fact that were inconsistent with the findings that Firth lacked a credible non-discriminatory explanation.
I think the nuances are close here, but the lesson is clear: A member of a protected group who receives unfavourable treatment cannot expect the Tribunal to presume that the treatment was a result of membership in the group.
Essentially, there was a heated argument in May 2008 which followed from Firth asking Pieters and Noble for identification in the lawyer's lounge. She explained that she frequently questions people that she doesn't recognize. The Tribunal noted that there were several people in the lounge at the time that she wouldn't have known, and inferred from this that the decision to stop Pieters and Noble was based on their race. The Tribunal felt that Firth's non-discriminatory explanations did not overcome this inference, and that it was likely that the decision to question them was at least partly based on race.
"Racial profiling" is a very difficult issue in human rights, involving legitimate and legal scrutiny applied in unfair measure to one group. When a police officer questions one individual but not another, detains one individual but not another, tickets one individual but not another, these are all ostensibly permissible exercises of police discretion...yet if the discretion is used in whole or in part because of race, it will violate the Human Rights Code.
This case is in some ways similar, though the Divisional Court downplayed the similarities when it recently allowed an Application for judicial review, on the basis that the Tribunal erred in its assessment of whether or not there was a prima facie case. Where a distinction has been made, it falls to the person asserting discrimination to establish the link between the treatment and a prohibited ground of discrimination. The Divisional Court felt that the Tribunal reversed this burden of proof by inferring the link from the absence of non-discriminatory explanation.
In any event, the Divisional Court found, there were findings of fact that were inconsistent with the findings that Firth lacked a credible non-discriminatory explanation.
I think the nuances are close here, but the lesson is clear: A member of a protected group who receives unfavourable treatment cannot expect the Tribunal to presume that the treatment was a result of membership in the group.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Tuesday, January 10, 2012
Dorriesfield v. Domtar - A good test case for judicial review?
The Human Rights Tribunal of Ontario just released its decision in the Dorriesfield v. Domtar case, dismissing the application because it was not commenced within the mandatory one year period.
The legislation sets up a two-stage test for relief against the one year limitations period: An application can only proceed if it can be shown that the delay was incurred in good faith, and that no substantial prejudice can be shown.
Ordinarily, administrative tribunals err on the side of hearing the merits of the case. The HRTO has gone the other way, imposing a very strict standard for relief against the limitations period. Dozens, perhaps hundreds, of applications have fallen to this problem since the HRTO became able to accept applications directly 3.5 years ago, and it is exceptionally rare that the Tribunal was satisfied that the delay was incurred in good faith. (The only case I know of is Lutz v. Toronto, in which the Tribunal had a full hearing on the issue and required Mr. Lutz to lead medical evidence and significant viva voce evidence establishing essentially that he was medically unable to file the application sooner.)
There are also cases where the Tribunal raised the matter of its own initiative then backed off because it was not "plain and obvious" that the delay was not incurred in good faith, still leaving the door open to dismiss the application later after more thorough consideration of the issue, and one, Moffatt v. Northampton Group, where the one-year deadline was missed by only 3 days so the Tribunal decided to delay its consideration of the issue until after mediation.
Put simply, the Tribunal has set the bar extraordinarily high for these matters. Judicial jurisprudence usually suggests that good faith requires that the person had no ulterior motive, and that if the delay was incurred because of ignorance to one's rights, there must have been no reason for the person to make inquiries about his or her rights. It isn't always clear what the Tribunal is looking for when they find that good faith has not been established, but it is clear that the Tribunal very closely scrutinizes any reason given for delay, and will find any justification not to accept the legitimacy of the reason.
The Case
In Dorriesfield, the application was filed on April 27 2009, in respect of his discharge from employment on June 27 2007, 22 months after the fact. One of the real exceptional aspects of the case was that it was filed by the Office of the Public Guardian and Trustee on behalf of Mr. Dorriesfield. The OPGT became Mr. Dorriesfield's guardian on March 26, 2008. It is estimated that the OPGT probably became aware of Mr. Dorriesfield's termination from employment in April 2008, and they discussed the matter with Dorriesfield's union in July 2008. In September 2008, the OPGT tried to encourage the union to reopen the matter to grieve the discharge.
The OPGT spent the following months seeking more information about the dismissal and how Dorriesfield's disability may have been a factor in it, communicating with Dorriesfield's doctors and union counsel. The union declined to pursue the matter any further in February 2009, following which the OPGT began its internal processes to get approval to apply to the HRTO.
The OPGT argued, among other things, that it was still obtaining medical evidence as late as December 2008, and in the mean time they were trying to pursue other avenues of resolving the issue, through asking the union to reopen the grievance and making other requests of the employer, and therefore the delay was incurred in good faith.
The Tribunal found that the "issue of the applicant's termination...was squarely in issue by April 2008." (The consequences of that are uncertain; after all, depending on when in April this became true, it may well be that the application was filed within a year afterwards. The Tribunal went on to consider alternatives, finding that, even if it was reasonable for them not to have acted until they became confident that there were still issues to be pursued in September/October, "the Application was not filed for approximately another seven months".) The Tribunal disposed of the OPGT's argument regarding its obtaining medical evidence by pointing out that "the time lines...are not suspended while a party gathers evidence in support of their claim". The Tribunal further noted that it "is settled law that pursuing other avenues of redress is not a good explanation for delay."
My Thoughts
I believe that this decision could be open to judicial review by the Divisional Court, for a couple of reasons:
(1) As distinct from an individual applicant putting together their case in advance of making an application, when the OPGT is gathering medical evidence to substantiate a claim, it is because they don't have the same innate and internal understanding of the individual's disability that the individual must have. The OPGT cannot be said to have known that there would have been grounds for an application until it reviewed medical evidence in light of knowing the reasons for termination. The very nature of the OPGT's mandate precludes one from assuming that they will have a fulsome understanding of the issues from an interview with the individual involved, and it is prudent and reasonable to expect them to do their due diligence before assuming that there was a Code breach.
(2) The Tribunal's treatment of the delay after the OPGT can be said to have been alive to the Code issues is questionable. What is the relevance of the seven month delay from September/October (if one supposes that this was when it was reasonable for the OPGT to start considering an Application) to the actual filing of the Application? Why is seven months too long, and what duration would not have been too long?
I pose a thought experiment: I am dismissed on grounds which are discriminatory, and on my way home I am so distraught that I get into a car accident, and am comatose for 366 days before waking up. Clearly, if I file an Application the next day, the delay is incurred in good faith. But if, during my recovery, I move a little bit more slowly to pull together my recollection of the matters in issue, consult legal counsel, and [gasp] try to informally resolve matters with my employer, and don't file the application for several more months, at what point is the delay no longer incurred in good faith? The Tribunal here seems to be suggesting a test akin to setting aside a default judgment, that you have to move as quickly as you possibly can once the one-year period is up. But the results of this are not fair, just, reasonable, or good public policy: It means that, because I was comatose, I am in a much worse position than somebody who had not suffered such a tragedy; I am not in a position to duly deliberate upon my options; I am not in a position to appropriately prioritize other matters; and furthermore I am forced into a position where I must commence litigation in respect of a matter which could quite conceivably be resolved informally without litigation.
The Tribunal seems to use the one-year limitation period as a way of trying to manage their immense case load. They dismiss what they can at preliminary stages. Yet if one really looks at the assortment of reasons they use in this case for finding that the delay was not incurred in good faith, they are essentially sending a message to the OPGT that it should have immediately taken steps to commence an application, without (a) satisfying itself that an application had a reasonable prospect of success or (b) attempting to determine whether or not the matter could be otherwise resolved or settled without formal Tribunal proceedings. If the OPGT and others took this message to heart, the consequence would be the filing of large numbers of frivolous applications and applications which could otherwise have been settled.
A more cogent and reasonable way of approaching the question of whether or not delay is incurred in good faith is by examining the reasons for the delay at any given point in time, and stopping the one-year clock through any period in which a good faith delay is incurred. Thus, after I wake up from my coma, I have one year. If my one-year coma was commenced in the tenth month after the Code breach, then perhaps I should only have two months left after waking up and resuming my daily activities. (Though, if one supposes that I woke up and remained incapable, then after an organization such as the OPGT picked up my affairs from scratch, it's fair to say that their clock shouldn't be started with 10 months elapsed.)
In other words, when the OPGT first became aware of the fundamental facts underlying the application, that should have started the one year clock; not put them on an "asap" schedule without the ability to investigate or negotiate the issues involved. Understand the distinction I'm drawing: There's a difference between saying "You shouldn't have missed the 12-month deadline just because you spent the whole year trying to muster your case and negotiate with the respondent" and saying "After missing the 12-month deadline for good reasons, you shouldn't have taken any time to muster your case or negotiate with the respondent."
The narrative of this case involves the OPGT taking reasonable steps forward at every stage, ultimately commencing an application approximately a year after they first became aware of the fact of the termination of employment, approximately seven months after they can be confidently said to have been aware that discrimination was a live issue, approximately four months after they obtained the medical evidence necessary to satisfy themselves that the application could be successful, and approximately two months after they reasonably concluded that an application was necessary.
If there's one thing that absolutely cannot be said to be missing in this timeline, it's "good faith".
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The legislation sets up a two-stage test for relief against the one year limitations period: An application can only proceed if it can be shown that the delay was incurred in good faith, and that no substantial prejudice can be shown.
Ordinarily, administrative tribunals err on the side of hearing the merits of the case. The HRTO has gone the other way, imposing a very strict standard for relief against the limitations period. Dozens, perhaps hundreds, of applications have fallen to this problem since the HRTO became able to accept applications directly 3.5 years ago, and it is exceptionally rare that the Tribunal was satisfied that the delay was incurred in good faith. (The only case I know of is Lutz v. Toronto, in which the Tribunal had a full hearing on the issue and required Mr. Lutz to lead medical evidence and significant viva voce evidence establishing essentially that he was medically unable to file the application sooner.)
There are also cases where the Tribunal raised the matter of its own initiative then backed off because it was not "plain and obvious" that the delay was not incurred in good faith, still leaving the door open to dismiss the application later after more thorough consideration of the issue, and one, Moffatt v. Northampton Group, where the one-year deadline was missed by only 3 days so the Tribunal decided to delay its consideration of the issue until after mediation.
Put simply, the Tribunal has set the bar extraordinarily high for these matters. Judicial jurisprudence usually suggests that good faith requires that the person had no ulterior motive, and that if the delay was incurred because of ignorance to one's rights, there must have been no reason for the person to make inquiries about his or her rights. It isn't always clear what the Tribunal is looking for when they find that good faith has not been established, but it is clear that the Tribunal very closely scrutinizes any reason given for delay, and will find any justification not to accept the legitimacy of the reason.
The Case
In Dorriesfield, the application was filed on April 27 2009, in respect of his discharge from employment on June 27 2007, 22 months after the fact. One of the real exceptional aspects of the case was that it was filed by the Office of the Public Guardian and Trustee on behalf of Mr. Dorriesfield. The OPGT became Mr. Dorriesfield's guardian on March 26, 2008. It is estimated that the OPGT probably became aware of Mr. Dorriesfield's termination from employment in April 2008, and they discussed the matter with Dorriesfield's union in July 2008. In September 2008, the OPGT tried to encourage the union to reopen the matter to grieve the discharge.
The OPGT spent the following months seeking more information about the dismissal and how Dorriesfield's disability may have been a factor in it, communicating with Dorriesfield's doctors and union counsel. The union declined to pursue the matter any further in February 2009, following which the OPGT began its internal processes to get approval to apply to the HRTO.
The OPGT argued, among other things, that it was still obtaining medical evidence as late as December 2008, and in the mean time they were trying to pursue other avenues of resolving the issue, through asking the union to reopen the grievance and making other requests of the employer, and therefore the delay was incurred in good faith.
The Tribunal found that the "issue of the applicant's termination...was squarely in issue by April 2008." (The consequences of that are uncertain; after all, depending on when in April this became true, it may well be that the application was filed within a year afterwards. The Tribunal went on to consider alternatives, finding that, even if it was reasonable for them not to have acted until they became confident that there were still issues to be pursued in September/October, "the Application was not filed for approximately another seven months".) The Tribunal disposed of the OPGT's argument regarding its obtaining medical evidence by pointing out that "the time lines...are not suspended while a party gathers evidence in support of their claim". The Tribunal further noted that it "is settled law that pursuing other avenues of redress is not a good explanation for delay."
My Thoughts
I believe that this decision could be open to judicial review by the Divisional Court, for a couple of reasons:
(1) As distinct from an individual applicant putting together their case in advance of making an application, when the OPGT is gathering medical evidence to substantiate a claim, it is because they don't have the same innate and internal understanding of the individual's disability that the individual must have. The OPGT cannot be said to have known that there would have been grounds for an application until it reviewed medical evidence in light of knowing the reasons for termination. The very nature of the OPGT's mandate precludes one from assuming that they will have a fulsome understanding of the issues from an interview with the individual involved, and it is prudent and reasonable to expect them to do their due diligence before assuming that there was a Code breach.
(2) The Tribunal's treatment of the delay after the OPGT can be said to have been alive to the Code issues is questionable. What is the relevance of the seven month delay from September/October (if one supposes that this was when it was reasonable for the OPGT to start considering an Application) to the actual filing of the Application? Why is seven months too long, and what duration would not have been too long?
I pose a thought experiment: I am dismissed on grounds which are discriminatory, and on my way home I am so distraught that I get into a car accident, and am comatose for 366 days before waking up. Clearly, if I file an Application the next day, the delay is incurred in good faith. But if, during my recovery, I move a little bit more slowly to pull together my recollection of the matters in issue, consult legal counsel, and [gasp] try to informally resolve matters with my employer, and don't file the application for several more months, at what point is the delay no longer incurred in good faith? The Tribunal here seems to be suggesting a test akin to setting aside a default judgment, that you have to move as quickly as you possibly can once the one-year period is up. But the results of this are not fair, just, reasonable, or good public policy: It means that, because I was comatose, I am in a much worse position than somebody who had not suffered such a tragedy; I am not in a position to duly deliberate upon my options; I am not in a position to appropriately prioritize other matters; and furthermore I am forced into a position where I must commence litigation in respect of a matter which could quite conceivably be resolved informally without litigation.
The Tribunal seems to use the one-year limitation period as a way of trying to manage their immense case load. They dismiss what they can at preliminary stages. Yet if one really looks at the assortment of reasons they use in this case for finding that the delay was not incurred in good faith, they are essentially sending a message to the OPGT that it should have immediately taken steps to commence an application, without (a) satisfying itself that an application had a reasonable prospect of success or (b) attempting to determine whether or not the matter could be otherwise resolved or settled without formal Tribunal proceedings. If the OPGT and others took this message to heart, the consequence would be the filing of large numbers of frivolous applications and applications which could otherwise have been settled.
A more cogent and reasonable way of approaching the question of whether or not delay is incurred in good faith is by examining the reasons for the delay at any given point in time, and stopping the one-year clock through any period in which a good faith delay is incurred. Thus, after I wake up from my coma, I have one year. If my one-year coma was commenced in the tenth month after the Code breach, then perhaps I should only have two months left after waking up and resuming my daily activities. (Though, if one supposes that I woke up and remained incapable, then after an organization such as the OPGT picked up my affairs from scratch, it's fair to say that their clock shouldn't be started with 10 months elapsed.)
In other words, when the OPGT first became aware of the fundamental facts underlying the application, that should have started the one year clock; not put them on an "asap" schedule without the ability to investigate or negotiate the issues involved. Understand the distinction I'm drawing: There's a difference between saying "You shouldn't have missed the 12-month deadline just because you spent the whole year trying to muster your case and negotiate with the respondent" and saying "After missing the 12-month deadline for good reasons, you shouldn't have taken any time to muster your case or negotiate with the respondent."
The narrative of this case involves the OPGT taking reasonable steps forward at every stage, ultimately commencing an application approximately a year after they first became aware of the fact of the termination of employment, approximately seven months after they can be confidently said to have been aware that discrimination was a live issue, approximately four months after they obtained the medical evidence necessary to satisfy themselves that the application could be successful, and approximately two months after they reasonably concluded that an application was necessary.
If there's one thing that absolutely cannot be said to be missing in this timeline, it's "good faith".
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wednesday, December 28, 2011
Discharged Richmond Hill bargaining unit member can't sue in wrongful dismissal
I've mentioned this before: Members of bargaining units cannot sue their employers in Court for matters related to their employment. This is a rule that is very firmly entrenched in the law, and there has been no sign of budging, yet we keep seeing cases crashing against this wall.
In the recent case of Doobay v. Town of Richmond Hill, Cyril Doobay became the most recent plaintiff whose case fell on jurisdictional bases, suing his employer for firing him in 2003 because he was drunk on the job.
He grieved the termination, and CUPE argued that the penalty should be reduced to accommodate his disability - alcoholism. The arbitrator dismissed the grievance on August 24, 2004. The arbitrator acknowledged the alcoholism as an issue (as well as the fact that the grievor had sought treatment), but found that reinstatement was impossible without the grievor taking full responsibility for his misconduct, which he had not.
Then, more recently, on November 4, 2010, he issued a statement of claim.
There are a lot of big problems here.
Firstly, there's the problem of delay. For claims discovered before January 1, 2004, there was a six year limitations period. For claims discovered since then, we have had a 2 year limitations period. Disability issues (probably including alcoholism) can, in some circumstances, push back limitations periods...but in this case, that wouldn't really help Mr. Doobay, because if the claim was discoverable in 2003, then he had until 2009 to bring an action (which he did not), whereas if the discoverability date was pushed to 2004, that would only give him to 2006 anyways. Limitations periods are fairly difficult to get around, in most cases. The logic is that the limitations periods usually give a person *lots* of time to initiate a legal action, so if someone misses the deadline, there had better be a really good reason for it. So this wall is pretty tough to get over. If you can't do it, the action gets dismissed.
The second problem is what we call "res judicata" - the issue has been decided before, by the arbitrator. Justice Lauwers found that this issue was res judicata (which in almost all cases results in dismissal of the action), but this wall was perhaps not so high, for a couple of reasons:
But what becomes more interesting is the costs analysis. You see, counsel for the Town sent a detailed letter to Mr. Doobay's lawyer explaining why the action was doomed to fail, and tried to use that letter to justify seeking substantial indemnity costs - i.e. costs on an elevated scale - in the amount of nearly $15,000. There was some discussion as to whether the letter constituted an offer to settle; the judge found that it did not, as there was no real offer to compromise, and in any event the rules regarding offers to settle (Rule 49) don't really speak to outright dismissals of actions in any event, and don't entitle a successful defendant to substantial indemnity costs.
So Rule 49 really wasn't the way to go on that. But the Court retains discretion to award substantial indemnity costs in any event, so one might have thought that the judge would have appreciated the fact that the defendant had tried to avoid the necessity of a motion by pointing out to the plaintiff the incontrovertible case law that would certainly lead to the dismissal of the action. I don't know what led to the issuance of a statement of claim in the face of that doctrine, and I'm not going to speculate, but there doesn't seem to be any reason why the plaintiff should have forced the Town to incur the legal fees of bringing the motion, once it had full particulars of the Town's position.
No such luck - ultimately, the judge fixed costs at $3500, in the event that Richmond Hill demands them.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
In the recent case of Doobay v. Town of Richmond Hill, Cyril Doobay became the most recent plaintiff whose case fell on jurisdictional bases, suing his employer for firing him in 2003 because he was drunk on the job.
He grieved the termination, and CUPE argued that the penalty should be reduced to accommodate his disability - alcoholism. The arbitrator dismissed the grievance on August 24, 2004. The arbitrator acknowledged the alcoholism as an issue (as well as the fact that the grievor had sought treatment), but found that reinstatement was impossible without the grievor taking full responsibility for his misconduct, which he had not.
Then, more recently, on November 4, 2010, he issued a statement of claim.
There are a lot of big problems here.
Firstly, there's the problem of delay. For claims discovered before January 1, 2004, there was a six year limitations period. For claims discovered since then, we have had a 2 year limitations period. Disability issues (probably including alcoholism) can, in some circumstances, push back limitations periods...but in this case, that wouldn't really help Mr. Doobay, because if the claim was discoverable in 2003, then he had until 2009 to bring an action (which he did not), whereas if the discoverability date was pushed to 2004, that would only give him to 2006 anyways. Limitations periods are fairly difficult to get around, in most cases. The logic is that the limitations periods usually give a person *lots* of time to initiate a legal action, so if someone misses the deadline, there had better be a really good reason for it. So this wall is pretty tough to get over. If you can't do it, the action gets dismissed.
The second problem is what we call "res judicata" - the issue has been decided before, by the arbitrator. Justice Lauwers found that this issue was res judicata (which in almost all cases results in dismissal of the action), but this wall was perhaps not so high, for a couple of reasons:
- Mr. Doobay's lawyer was arguing that the arbitration process was tainted by a lack of appreciation of the nature of the disability and the availability of accommodation programs in the Town. Now, I'm not sure that this argument rightly could have succeeded, because it doesn't really address the test for res judicata, and moreover it asks the Court to evaluate the results of the arbitration process...which might not be so bad, but for a couple of problems:This was an action, not a judicial review application; and Mr. Doobay probably wouldn't have had standing to seek judicial review. (The judge notes that Mr. Doobay did not seek judicial review, which is "the customary way in which such decisions are challenged". This may gloss over the fact that it is the union, not the grievor, with standing to seek judicial review, which fact the judge does not appear to bear in mind.) So the fact that this isn't a judicial review application isn't just a wrong choice of venue; Mr. Doobay probably could not have chosen a different venue, outside of asking CUPE to do so.
- All that being said, the finding that this is res judicata is, strictly speaking, wrong. One of the essential elements of the test of res judicata is that the parties involved must be the same. The reason Mr. Doobay would not have had standing to apply for judicial review is that he was not a party to the proceeding, in the strictest sense. Not being a party, the doctrine of res judicata could not block him from seeking remedies elsewhere. Of course, other doctrines would block just about every other type of remedy conceivable based on facts that had formed the subject matter of an unsuccessful grievance arbitration.
But what becomes more interesting is the costs analysis. You see, counsel for the Town sent a detailed letter to Mr. Doobay's lawyer explaining why the action was doomed to fail, and tried to use that letter to justify seeking substantial indemnity costs - i.e. costs on an elevated scale - in the amount of nearly $15,000. There was some discussion as to whether the letter constituted an offer to settle; the judge found that it did not, as there was no real offer to compromise, and in any event the rules regarding offers to settle (Rule 49) don't really speak to outright dismissals of actions in any event, and don't entitle a successful defendant to substantial indemnity costs.
So Rule 49 really wasn't the way to go on that. But the Court retains discretion to award substantial indemnity costs in any event, so one might have thought that the judge would have appreciated the fact that the defendant had tried to avoid the necessity of a motion by pointing out to the plaintiff the incontrovertible case law that would certainly lead to the dismissal of the action. I don't know what led to the issuance of a statement of claim in the face of that doctrine, and I'm not going to speculate, but there doesn't seem to be any reason why the plaintiff should have forced the Town to incur the legal fees of bringing the motion, once it had full particulars of the Town's position.
No such luck - ultimately, the judge fixed costs at $3500, in the event that Richmond Hill demands them.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Monday, November 7, 2011
Another Analysis of "Appropriately Dealt With"
On October 27, I made an entry about a recent Divisional Court case, Trozzi, interpreting s.45.1 of Ontario's Human Rights Code, which permits the Tribunal to dismiss an application the subject matter of which has been "appropriately dealt with" in another proceeding. The Court determined that Ms. Trozzi could not go to the Human Rights Tribunal to fight over a human rights issue that had already been considered and dealt with by the Health Professions Appeal and Review Board.
In that post, I argued that Trozzi may still leave the door open to an argument that the Tribunal is able to hear arguments about matters previously decided by labour arbitrators if they are of the opinion that the arbitrator didn't "appropriately" deal with the subject matter, as happened in the Barker case (which I talked about here in July).
On October 28, as an anonymous commenter on my Oct 27 entry has drawn to my attention, the Supreme Court of Canada released a decision in British Columbia (Workers' Compensation Board) v. Figliola, interpreting an almost identical section, s.27(1)(f), of the British Columbia Human Rights Code, which gives much more material for the discussion.
Figliola suffered a workplace injury which resulted in chronic pain, and British Columbia's WCB had a policy that essentially set out a fixed formula for what people with chronic pain would receive. He argued, among other things, that this policy contravened the Code, and took the argument to a Review Officer, who rejected it. Around this same time, the BC Legislature enacted legislation which removed the Workers' Compensation Appeal Tribunal's jurisdiction to consider human rights issues, which meant that the Review Officer's decision regarding human rights could not be appealed. As a side effect of this, it would have been possible to seek judicial review of the Review Officer's decision in respect of the human rights matter. Figliola decided instead to take the matter to the BC Human Rights Tribunal. The WCB argued that it should dismiss the application because its subject matter had been "appropriately dealt with" in another proceeding, and the Tribunal declined to do so.
The Tribunal's reasoning was premised on a previous BC Court decision interpreting the provision in context of a Barker-type case, where the Tribunal had reviewed an issue previously addressed by a labour arbitrator: The Court had felt that s.27(1)(f) captured the underlying principles of certain common law doctrines against multiple proceedings. The Tribunal, applying the common law tests literally, concluded in Figliola that they weren't strictly met, and therefore declined to exercise its discretion to dismiss the application.
The Supreme Court was unanimous that this was wrong. Capturing the underlying principles does not mean that the test should be applied technically. However, the analysis had an important schism, with a 5/4 split court.
Justice Abella's camp - the majority - argued that the Tribunal's discretion should be interpreted narrowly, requiring deference to other adjudicated decisions and not permitting discretion to hear such matters anyways. They allowed the appeal and dismissed the complaint.
Justice Cromwell's minority, on the other hand, argued that the language confers a wide discretion, and so while the Tribunal failed to answer the question correctly in the first place, the matter should be sent back to them to apply a proper analysis as to whether or not to proceed with the complaint. The implication being, of course, that the Tribunal should still be able to evaluate for itself whether or not the WCB had "appropriately dealt with" the subject matter.
Typically, we wouldn't give too much attention to the dissent. The majority's conclusion is now the state of the law in Canada, binding on everyone except the Supreme Court itself. The dissent is just that - a dissent - and even though it made some very strong criticisms of the majority's reasons for finding a narrow discretion (which essentially turned on the context in which s.27(1)(f) falls), the BCHRT is now stuck with the majority's decision.
The more interesting question is the consequences in Ontario, where we have essentially the exact same legislative provision. One might think that the Supreme Court would find that the same phrase has the same meaning in British Columbia and Ontario - in fact, there's a strong argument to that effect. Yet the reasons underlying the majority's interpretation in British Columbia is significantly based on the subsections surrounding the provision in the B.C. Legislation, which is in fact very different from the surrounding context in Ontario.
Meaning that, if Trozzi or some similar case goes to the Ontario Court of Appeal, it is quite possible that the Court would distinguish Figliola on that basis, and perhaps even conclude, given the strength of the dissent, that the dissent's interpretation of the provision is the one that should be applied to the Ontario language.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
In that post, I argued that Trozzi may still leave the door open to an argument that the Tribunal is able to hear arguments about matters previously decided by labour arbitrators if they are of the opinion that the arbitrator didn't "appropriately" deal with the subject matter, as happened in the Barker case (which I talked about here in July).
On October 28, as an anonymous commenter on my Oct 27 entry has drawn to my attention, the Supreme Court of Canada released a decision in British Columbia (Workers' Compensation Board) v. Figliola, interpreting an almost identical section, s.27(1)(f), of the British Columbia Human Rights Code, which gives much more material for the discussion.
Figliola suffered a workplace injury which resulted in chronic pain, and British Columbia's WCB had a policy that essentially set out a fixed formula for what people with chronic pain would receive. He argued, among other things, that this policy contravened the Code, and took the argument to a Review Officer, who rejected it. Around this same time, the BC Legislature enacted legislation which removed the Workers' Compensation Appeal Tribunal's jurisdiction to consider human rights issues, which meant that the Review Officer's decision regarding human rights could not be appealed. As a side effect of this, it would have been possible to seek judicial review of the Review Officer's decision in respect of the human rights matter. Figliola decided instead to take the matter to the BC Human Rights Tribunal. The WCB argued that it should dismiss the application because its subject matter had been "appropriately dealt with" in another proceeding, and the Tribunal declined to do so.
The Tribunal's reasoning was premised on a previous BC Court decision interpreting the provision in context of a Barker-type case, where the Tribunal had reviewed an issue previously addressed by a labour arbitrator: The Court had felt that s.27(1)(f) captured the underlying principles of certain common law doctrines against multiple proceedings. The Tribunal, applying the common law tests literally, concluded in Figliola that they weren't strictly met, and therefore declined to exercise its discretion to dismiss the application.
The Supreme Court was unanimous that this was wrong. Capturing the underlying principles does not mean that the test should be applied technically. However, the analysis had an important schism, with a 5/4 split court.
Justice Abella's camp - the majority - argued that the Tribunal's discretion should be interpreted narrowly, requiring deference to other adjudicated decisions and not permitting discretion to hear such matters anyways. They allowed the appeal and dismissed the complaint.
Justice Cromwell's minority, on the other hand, argued that the language confers a wide discretion, and so while the Tribunal failed to answer the question correctly in the first place, the matter should be sent back to them to apply a proper analysis as to whether or not to proceed with the complaint. The implication being, of course, that the Tribunal should still be able to evaluate for itself whether or not the WCB had "appropriately dealt with" the subject matter.
Typically, we wouldn't give too much attention to the dissent. The majority's conclusion is now the state of the law in Canada, binding on everyone except the Supreme Court itself. The dissent is just that - a dissent - and even though it made some very strong criticisms of the majority's reasons for finding a narrow discretion (which essentially turned on the context in which s.27(1)(f) falls), the BCHRT is now stuck with the majority's decision.
The more interesting question is the consequences in Ontario, where we have essentially the exact same legislative provision. One might think that the Supreme Court would find that the same phrase has the same meaning in British Columbia and Ontario - in fact, there's a strong argument to that effect. Yet the reasons underlying the majority's interpretation in British Columbia is significantly based on the subsections surrounding the provision in the B.C. Legislation, which is in fact very different from the surrounding context in Ontario.
Meaning that, if Trozzi or some similar case goes to the Ontario Court of Appeal, it is quite possible that the Court would distinguish Figliola on that basis, and perhaps even conclude, given the strength of the dissent, that the dissent's interpretation of the provision is the one that should be applied to the Ontario language.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, October 27, 2011
The First of the s.45.1 Cases
I have previously expressed concerns with the Human Rights Tribunal of Ontario's various applications of s.45.1 of the Human Rights Code. This section allows the HRTO to dismiss an application if the subject matter of the application has been "appropriately dealt with" in another proceeding. In the linked post, I noted a case in which the Human Rights Tribunal refused to dismiss an application on this ground because it disagreed with the analysis that Arbitrator Surdykowski used in reaching it.
The Divisional Court just released a decision in College of Nurses v. Trozzi on a similar issue. Trozzi sought a nursing license from College of Nurses. The College imposed conditions on the license on the basis of certain medical conditions she had, and she challenged the decision at the Health Professions Appeal and Review Board (HPARB). She lost.
While waiting for the decision from the HPARB, she initiated a Human Rights Application, and the College sought dismissal under s.45.1. The Tribunal found that the HPARB had failed to apply the correct analysis to the question. The College sought judicial review.
That the Divisional Court even heard the application for judicial review at this stage is surprising - the Tribunal proceeding is ongoing, and normally this would be regarded as "premature". But as it went to a "true" jurisdictional question, the Court refused to quash the application for judicial review.
The Divisional Court unanimously allowed the application for judicial review, but there were different sets of reasons. The majority felt that the HRTO overstepped its bounds by attempting to sit in review of another statutory Tribunal with a "public protection mandate". Justice Lederer, by contrast, felt that the distinction of "public protection mandate" is somewhat meaningless, and that the Tribunal overstepped its bounds simply by trying to sit in review of another statutory Tribunal at all.
I don't think that this is the last s.45.1 case we're going to see, but the Divisional Court appears to be putting the HRTO in its place pretty firmly.
The Divisional Court just released a decision in College of Nurses v. Trozzi on a similar issue. Trozzi sought a nursing license from College of Nurses. The College imposed conditions on the license on the basis of certain medical conditions she had, and she challenged the decision at the Health Professions Appeal and Review Board (HPARB). She lost.
While waiting for the decision from the HPARB, she initiated a Human Rights Application, and the College sought dismissal under s.45.1. The Tribunal found that the HPARB had failed to apply the correct analysis to the question. The College sought judicial review.
That the Divisional Court even heard the application for judicial review at this stage is surprising - the Tribunal proceeding is ongoing, and normally this would be regarded as "premature". But as it went to a "true" jurisdictional question, the Court refused to quash the application for judicial review.
The Divisional Court unanimously allowed the application for judicial review, but there were different sets of reasons. The majority felt that the HRTO overstepped its bounds by attempting to sit in review of another statutory Tribunal with a "public protection mandate". Justice Lederer, by contrast, felt that the distinction of "public protection mandate" is somewhat meaningless, and that the Tribunal overstepped its bounds simply by trying to sit in review of another statutory Tribunal at all.
I don't think that this is the last s.45.1 case we're going to see, but the Divisional Court appears to be putting the HRTO in its place pretty firmly.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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