Thursday, October 6, 2011

Human Rights and Quantum Physics

In Quantum Physics there's a thought experiment referred to as "Schrödinger's Cat", derived by Erwin Schrödinger in 1935.  It's a bizarre concept, quite impossible to wrap one's head around, and it has worked its way into certain pop culture phenomena (such as the hit TV show "Big Bang Theory").

Einstein and others wrote an article postulating some of the premises of quantum physics (the "Copenhagen interpretation"), and Schrödinger thought that they were implausible.  He used a reductio ad absurdum argument to show how the premise, if accepted, necessary led to absurd consequences:

Imagine a cat in a box with a device set up involving a tiny bit of a radioactive substance (so small that the atoms may or may not decay over the course of an hour) and a flask of acid.  If the radioactive substance decays, the acid will be released and will kill the cat.  If the radioactive substance does not decay, then the acid will not be released and the cat will be alive.

Schrödinger pointed out that, if one accepted the Copenhagen interpretation, until the box is opened, the cat would remain both dead and alive.

It seems pretty absurd, meaning that the Copenhagen interpretation must be wrong...right?  The trouble, of course, is that over the course of several decades of experimentation and study since then, it has become pretty universally accepted in physics circles that the Copenhagen interpretation is correct.  And therefore that the cat is, in fact, both dead and alive.

So how does this relate to workplace law?  Bear with me for a moment while I explain how the Human Rights Commission put a cat in a box.

Until the end of June, 2008, every Human Rights proceeding in the Province started as a complaint to the Human Rights Commission.  The Commission would investigate the complaint, and determine whether or not to refer it to the Tribunal.  In theory, it's a 'gatekeeper' role, followed by an advocacy role.  In practice, it ended up creating a large backlog at multiple stages - the Commission would often take years to investigate a complaint, before the Tribunal process even got started.

So the Legislature removed the Commission's gatekeeper role, and since June 30, 2008, people have the right to apply directly to the Tribunal, and are eligible for legal assistance through the Human Rights Legal Support Centre.

The transition was tricky.  The Commission - though it no longer had jurisdiction to accept a new complaint - was able to sort out a part of its backlog until the end of 2008.  Until then, people whose complaints hadn't been dealt with by the Commission had the right to drop those complaints and apply directly to the Tribunal.  But that put it into a transitional stream, which was dealt with differently and for which HRLSC assistance wasn't available.  In 2009, the Commission could no longer do anything with complaints, and somebody who had a complaint before the Commission *had* to make a transitional application by June 30, 2009, to keep the process alive.  (Again, if the subject matter of the application was before the Commission, you *had* to use the transitional process.)

In early 2008, the Commission, aware that new cases weren't likely to be dealt with by the time they lost their mandate, basically started turning people away.  Essentially, somebody would send in a complaint (which was traditionally deemed filed when received, unless upon assessment it was determined to be incomplete), and when the Commission would get to it they would call the complainant and suggest that they should drop the complaint and pursue the matter after June 30 by applying directly to the Tribunal.  In most cases, the person would agree to do so.

But - and here's the rub - they didn't always get to these complaints before June 30 in the first place.  There are a number of matters where similar issues arose, including the Patterson case, the Sharras case, and the Wilberforce case.

Ms. Patterson submitted a complaint on April 18, 2008.  The Commission called her on June 5, 2008, and convinced her not to proceed with the complaint and to instead apply to the Tribunal the following month through the new process.  When she did so, she checked the box indicating that she had filed a complaint with the Commission, which flagged the Tribunal to question whether or not the new process was available.  They contacted the Commission, and the Commission explained that they didn't consider a complaint to be "filed" (within the meaning of the Human Rights Code) until it was accepted at the end of the assessment process.  The Tribunal took this explanation at face value and allowed the application to proceed.

Ms. Sharras submitted a complaint in March 2008.  The Commission's intake worker tried to contact her in late June, and having failed to do so, purported to close the file as withdrawn on July 2, 2008.  In July, they finally got in contact, and the intake worker suggested that Ms. Sharras go directly to the Tribunal under the new process.  The Commission provided the same explanation to the Tribunal as in Patterson, but this time the employer's counsel dug up the Commission's published policies, which actually had a definition of when a complaint was considered to be "filed"...which seemed to conflict with the explanation the Commission was now providing.

The parties ultimately agreed that, in that case, the complaint had been "filed" (so the Tribunal didn't ultimately decide that issue), and the question became whether or not the 'withdrawal' of the complaint prevented it from proceeding as a Transitional Application - in December 2008 the Tribunal allowed it to proceed in the transitional stream.

Ms. Wilberforce submitted a complaint in May 2008.  In this case, the Commission didn't get to it until September, and they suggested that Ms. Wilberforce should proceed through the new process at the Tribunal.  Which she did.  This went to a full oral hearing on the issue of whether or not the complaint had been "filed", which was recently decided in this decision.

A few things are clear:  First, in September 2008 Ms. Wilberforce was asked if she wanted to discontinue the Commission complaint and proceed to the Tribunal herself.  The decision not to process the complaint was not made until after Ms. Wilberforce consented to it.  Secondly, in September 2008 the Commission had no jurisdiction to accept the filing of new complaints.

The Tribunal accepted the Commission's evidence that a complaint was only considered filed after it had been assessed, but the timing of the filing was defined by when it had been received under the Commission's policies.  If, in September, the assessment had been conducted and determined that the complaint was properly completed, it would have been considered to have been filed in May.  However, without an assessment determining whether or not it was properly completed, it was not considered to have been filed.

So the filing of the complaint becomes Schrödinger's cat.  Until it is looked at, the complaint can be considered both alive and dead.  Though this is how particle physics appears to operate, I would argue that it isn't how our law should work.

It's worth noting that "accuracy and completeness" - the objectives of the assessment - can be regarded objectively, and are also clearly defined in the Commission's policies.  It is not the case that a complaint can be considered both complete and incomplete at the same time, or accurate and inaccurate at the same time.  If the complaint had some obvious deficiencies - unsigned or otherwise incomplete - that would have been a full answer to the suggestion that a complaint had been filed.  But if one assumes that it was a properly completed complaint, received prior to the June 30 deadline, then it is difficult to see how the Commission had the discretion to not accept the filing of the complaint.


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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