Thursday, February 27, 2014

Guest Entry by Evan Schiller: OLRB Confirms that Employers Cannot Punish Workers for Complaining about Workplace Harassment

Evan Schiller, a worker representative from the Office of the Worker Adviser, has authored a case commentary on the OLRB's case law regarding reprisals for complaints of workplace harassment.  This is a topic that I have followed closely, and I'm pleased to present somebody else's comments about it for a change.


OLRB confirms that employers cannot punish workers for complaining about workplace harassment

But reprisal applications based on harassment still a tough sell

By Evan Schiller

Much controversy has surrounded the question of whether the Occupational Health and Safety Act [“the OHSA”] provides enough – or, for that matter, any – protection for workers against workplace harassment. In 2010, through Bill 168, a definition of workplace harassment was added to the OHSA, with some limited rights and responsibilities associated with it. The key word, however, is “limited.”

One right that workers do have under the OHSA is protection against reprisals. Under section 50 of the OHSA, employers are prohibited from terminating, punishing, or threatening workers for exercising their health and safety rights (such as the right to refuse unsafe work). The idea is to encourage workers to report health and safety issues in the workplace without fear of reprisals.

But, given the limitations of the workplace harassment provisions, when an employer punishes a worker because they reported an incident of harassment in the workplace, has the employer committed a health and safety reprisal? In other words, does the OHSA give workers the right to complain about workplace harassment?

Until recently, the Ontario Labour Relations Board (OLRB) was divided on this question. One string of decisions suggested that Bill 168 did not go far enough to even give workers the right to complain about harassment, and, thus, any punishment imposed on a worker for doing so would not be a reprisal. This was led by Vice-Chair Brian McLean’s comments in Conforti v Investia Financial Services, 2011 CanLII 6089 [Investia]. Vice-Chair McLean’s opinion was that the Bill 168 provisions of the OHSA only require employers to develop a harassment policy and program, but not to take any actual steps to prevent harassment in the workplace. So, workers who ask to be protected from harassment are not actually exercising a right (paras. 9-20). This was, however, just an opinion, and not the final basis for his decision in that case.

Another more recent string of decisions has concluded that workers do have the right to report incidents of harassment to an employer, even if the employer ultimately decides not to do anything about it. In Ljuboja v AIM Group, 2013 CanLII 76529 [AIM Group], Vice-Chair Jesse M. Nyman agreed with Vice-Chair McLean that the OHSA does not dictate any substantive steps that employers must take to protect workers from harassment (para. 61). Nonetheless, the mandatory harassment program under the OHSA at least requires employers to allow workers to bring forward complaints, a requirement that would be meaningless if workers could simply be fired for doing so (paras. 49-53):
Accepting, as I do, that the Act requires employers to have an internal process for addressing instances and complaints of workplace harassment, it would entirely undermine that process if an employer is free to terminate a worker because he or she brought forward a complaint of workplace harassment in compliance with that process. An interpretation of the Act that finds employers are obligated to create and maintain a policy by which workers may bring forward complaints of harassment but are nevertheless free to terminate, or otherwise penalize or retaliate against, any worker for having actually made a complaint under that policy is, in my view, untenable. To interpret the Act in this manner would be to strip the employer’s obligation to have a program to implement their workplace harassment policy through which workers may make a complaint of any meaning. Surely the Legislature did not intend in subsection 32.06(2) to spell out the obligation on employers to include measures and procedures for workers to report incidents of harassment at their own peril? Surely the Legislature did not envision that, in requiring employers to describe how they will “deal with” complaints of workplace harassment in subsection 32.02(2)(b), employers would be free to terminate the complainant merely because he or she had the temerity to complain about a course of unwelcome and vexatious comment or conduct?
A new decision, Murphy v The Carpenters’ District Council of Ontario, 2014 CanLII 2304 [Murphy], released on January 23, 2014 by Vice-Chair Brian McLean himself – the man behind the Investia decision – appears to resolve this legal question once and for all. Perhaps surprisingly, Vice-Chair McLean has (reluctantly) accepted Vice-Chair Nyman’s analysis from AIM Group (para. 32):
At the time of the hearing of this matter, there had been no settlement in the Board’s jurisprudence regarding whether the making of a harassment complaint constitutes the exercise of a right under the OHSA… In [AIM Group], the Board (differently constituted) rejected the Investia reasoning and found that the making of a complaint under an employer’s harassment policy constitutes seeking the enforcement of the [OHSA]... While I have some difficulty with the reasoning in that decision, I recognize that it is within a range of possible results and in the interests of consistent decision making regarding the Board’s interpretation of the OHSA, I accept it.
This is definitely a win for workers, but one that should not be overstated. The Murphy decision merely confirms that workers have the narrow right under the OHSA to complain about workplace harassment through an employer’s harassment policy. However, as the caselaw stands, that is the only right workers have.

Every OLRB decision from both sides of the fence has concluded that the OHSA does not give workers the right to a “harassment-free workplace” (Investia at para. 15, AIM Group at para. 61). Instead, it only requires employers to develop a policy and program for harassment, but then leaves all questions of implementation and enforcement entirely up to the employer – it is an internal process. So, a worker has the legal right to complain, and not to be fired for doing so. But the way in which the employer investigates and deals with the worker’s complaint will not be second-guessed by the Ministry of Labour or the OLRB.

If a worker is unhappy with the employer’s investigation of their complaint (e.g., if they feel that the employer failed to interview relevant witnesses), the worker does not have the right to insist that the employer do so. Similarly, if the worker is unhappy with the employer’s conclusions after investigating their complaint (e.g. if the employer decides that no corrective action is necessary), the worker does not have the right to insist on some substantive result (e.g., a transfer to a new location, or discipline against the alleged harasser).

If a worker is not satisfied with their employer’s internal process, becomes vocal about it, then gets fired because they couldn’t accept how their complaint was handled, that likely would not be considered a reprisal under the OLRB’s current approach.

Furthermore, how the worker goes about complaining about harassment in the first place has been subject to considerable scrutiny from the OLRB – much more so than for workers who complain about physical hazards. In the Murphy case, Mr. Murphy emailed several complaints to a manager, making reference to his supervisor’s “daily abusive behaviour” and “bullying tactics,” and even noting that he “feels threatened,” and that it is “having… effects on my health.” However, the emails also contained lengthy descriptions that had nothing to do with harassment or health and safety, but were instead “[complaints] by a subordinate about how his supervisor was doing his job” (para. 38), which Vice-Chair McLean described as “not acceptable” in the “politics and economics of that workplace” (para. 39).

Noting that it was “incumbent on [Murphy] to raise his concerns in a clear way” and, since he had failed to do so, Vice-Chair McLean accepted the employer’s testimony that, when they received Murphy’s emails, they did not perceive them as “harassment complaints” under the OHSA (paras. 35-37), but rather as insubordination. As such, the employer’s motivation when it terminated Murphy had nothing to do with any attempt to exercise his rights under the OHSA.

The Murphy case is important because Murphy overcame the legal hurdle of proving that he had the right to complain about harassment; but, he was denied on the facts, which the OLRB construed quite narrowly when it found that what he had written was not actually a harassment complaint.

Despite the small step that the OLRB has taken towards increased protection for workers – i.e., the narrow finding that workers have the right to complain about harassment, and thus, cannot have reprisals taken against them for doing so – the fact remains that there has not yet been a single successful decision in a reprisal application based on a harassment complaint. Worker advocates still have a lot of room for argument for an increasingly “large and liberal” approach to the workplace harassment provisions in the OHSA. For now, with the AIM Group and Murphy decisions, at least the Board appears to be slowly moving in the right direction.


About Evan Schiller

Evan Schiller was called to the Ontario bar in 2009, after completing his articles with the Ontario Ministry of Labour (MOL). Since that time, Evan has held positions such as Crown Counsel for the MOL, and Legal Counsel for the United Food & Commercial Workers union, Local 175. Currently, Evan is a Worker Representative with the Office of the Worker Adviser (OWA), assisting workers who have had reprisals taken against them for exercising their rights under the Occupational Health and Safety Act. Evan is also a musician, performing regularly in the Toronto area with his cover band, The Moonwalks.


DDB's Commentary

Incidentally, while I largely agree with Mr. Schiller's analysis, I propose to comment briefly on his statement that "the way in which the employer investigates and deals with the complaint will not be second-guessed by the Ministry of Labour or the OLRB."

At paragraph 53 of the AIM Group decision, Vice-Chair Nyman discussed the contents of the requirement to implement a policy and program for workplace harassment:
The program must therefore be something more than just the policy and thus must be something more than merely creating and posting the policy; in my opinion it must include some active steps in carrying out the policy or giving effect to it.
Strictly speaking, most of the case law thus far deals with a specific question, in context of a specific process:  They all deal with the issue of whether or not making a harassment complaint engages the reprisal protection under s.50 of the OHSA, and accordingly whether or not the OLRB has jurisdiction to hear a s.50 application under such circumstances.

In a scenario where an employer, for example, simply ignored harassment complaints, there is no question that s.50 would not provide any relief to the employee.

However, if one supposes that Vice-Chair Nyman is correct in the passage I quoted, then the Ministry of Labour would thereby be empowered to investigate and remedy an employer's failure and refusal to comply with its own policy.  (I don't know if the Ministry is yet taking a position on the point, and whether or not the Ministry can be compelled to act is an entirely different can of worms.)

Also, I would highlight that even that is a procedural right, which would require the employer to act in accordance with its policy, without guaranteeing any particular outcome.

Beyond that, I will say that I agree with Mr. Schiller's overall conclusions - AIM Group was a positive first step, if a small one.  (As a lawyer who acts for both employers and employees, I can say that I see practical and legal advantages even to my employer clients of the statutory reprisal protection - the fact that employees have a protected right to make a complaint may entitle employers to expect employees to exercise that right prior to taking other steps.)  But I continue to argue, against the established jurisprudence, that it is no longer possible to read the Occupational Health and Safety Act as omitting recognition of the threat to health and safety posed by harassment, which would imply that the employer has some substantive obligations relating to the prevention of workplace harassment.


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, February 26, 2014

Update: ETR Can't Go After Discharged Bankrupts

Back in 2012, I posted about a case going to the Ontario Court of Appeal:  In a nutshell, the question is whether or not a discharged bankrupt still has to pay his ETR bill to renew his vehicle plates.

Ironically, the bankrupt at the heart of the case didn't pursue the appeal, because he had received a "very, very attractive offer" to settle with the ETR.  It makes sense - the ETR absolutely loved the decision below.  It allowed them to put on their website that the courts have upheld their position that they can still enforce plate denial against discharged bankrupts, and it created a great precedent which would disincent discharged bankrupts from challenging them on it.  So, rather than fight the appeal, risking a loss, and immediately losing any ability to collect against discharged bankrupts, they figured it's better to settle with the guy and leave the decision below intact.

One problem:  The Superintendent of Bankruptcy, with a public mandate to maintain the integrity of the bankruptcy system, stepped in to proceed with the appeal.  So, technically, while the Superintendent was essentially fighting to protect Mr. Moore's rights, Mr. Moore was a respondent on the appeal.  (I don't know enough about the settlement details to know if the settlement survives the result of the appeal.)

The core legal question, as I highlighted in my prior post, is whether or not the ETR's plate denial mechanism, pursuant to Ontario legislation, is contrary to the provisions of the Bankruptcy and Insolvency Act.  If there's a conflict, then the BIA trumps, being federal legislation.

And the Court of Appeal has said that yes, there is a conflict.  Therefore, the ETR cannot seek plate denial of discharged bankrupts.  (Whether or not the same applies to undischarged bankrupts is a battle for another day, however.)

Operational Conflict versus Conflict of Purpose

There's a distinction to be drawn between 'operational conflicts' and 'conflicts of purpose'.  And the notion of an operational conflict wasn't really pursued.  Simply put, a bankruptcy doesn't extinguish indebtedness; the debt still exists, but a discharged bankrupt can't be sued on such debts (with certain exceptions).  So the fact that the 407 Act permits the ETR to continue to enforce plate denial against discharged bankrupts isn't really a problem - the ETR can't sue a discharged bankrupt for the debt, due to the operation of the BIA, but plate denial is an entirely different animal.

However, there's still another layer to the analysis, and it's that Federal paramountcy doesn't permit Provincial legislation to frustrate the purpose of properly-enacted Federal legislation.

And there are two purposes of the BIA in issue:  The "fresh start" principle, and the equal treatment of unsecured creditors.  (Sadly, the Court of Appeal found it unnecessary to address the second principle.  I would have been interested in that commentary.)

The very point of the BIA is to give people a 'fresh start'.  You're buried in debt, and if those debts are all enforced against you, that means that you'll spend the rest of your life under the crippling burden of insolvency.  The BIA gives you an opportunity to try again - you pay what you can of your debts, and after a period of time, you're able to start anew.

And since the purpose of the plate denial is to help the ETR collect on a debt, it thwarts the purpose of the BIA.

To be clear, the result isn't a declaration of invalidity of the relevant statutory provision - it's a finding that the provision is invalid "to the extent" that it affects discharged bankrupts.  (That's what we lawyers call "reading down".)


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, February 25, 2014

FreeDominion Case Update

I recently posted about a decision in a defamation action by Richard Warman against the owners of (and some contributors to) the FreeDominion internet forum.  The jury found the defendants liable for some 41 defamatory statements, and awarded a total of $42,000 in damages.

As well, the judge presiding over the trial granted an injunction prohibiting the defendants from further circulating the defamatory remarks, and awarded legal costs to Mr. Warman in the amount of $85,000.

I noted in that post that the Fourniers planned to appeal, and were fundraising in support of the appeal.  I've now received a copy of the Fourniers' Notice of Appeal.  I'm not going to link the full document, but here are the highlights:
  • Only the injunction and costs award are being appealed; not liability for defamation or damages.
  • The appeal against the injunction raises four grounds:
    • The trial judge failed to consider the impact of the Charter's guarantee of freedom of expression;
    • The trial judge misapplied the legal test for an injunction against defamation;
    • The trial judge improperly relied on the Fourniers' publication of the Notice of Libel and Statement of Claim; and
    • There was no "direct evidence" supporting a finding that the Fourniers had repeated or intended to repeat the defamatory remarks, after taking them down in 2008.
  • The appeal against the costs raises two grounds:
    • The judgment against each defendant was within the jurisdiction of the Small Claims Court, so no costs should have been awarded; and
    • The trial judge erred in principle by awarding substantial indemnity costs without regard for proportionality and by 'punishing' the defendants for generally defending the action.
These are the arguments that the Fourniers plan to make at the Court of appeal.  The arguments aren't (and don't need to be) fleshed out in detail in the Notice of Appeal, but there's enough to warrant some commentary.  Getting a better look at their grounds, I can guess at where they're going to be coming from, for the most part.  While I expect that there are certain interesting legal issues raised, I actually think that the appeal can be boiled down to a couple of very simple issues.

I should disclaim here that I am not involved in this case, and both sides are represented by experienced counsel.  My commentary here is not intended to be construed as a legal opinion as to the merits of the appeal, but rather a general commentary, for the benefit of the general public, as to how the arguments in this case fit into the larger legal framework.  (This is, after all, a newsworthy case.)  To the extent that I make predictions as to how the Court of Appeal may rule on a given issue, I should note that I do not have access to the full record, and do not actually know the specifics of the arguments to be advanced by either side, so there's a degree of speculation here, and in no way should this be interpreted as a professional opinion.

Only the Injunction and Costs Award are Being Appealed

As I noted in my previous entry, jury awards are very difficult to appeal.  An appellant is basically limited to saying that the judge made a mistake in deciding what evidence to let the jury hear, that the judge made a mistake in his or her instructions to the jury, or that there was no factual foundation whatsoever on the record to support the jury's findings.  [Appellate law 101:  Disagreeing with the result is not a basis for appeal.  An appeal can only be based on mistakes in the decision below, and given that the finder of fact is entitled to decide the facts, it's next-to-impossible to appeal a finding of fact.  So many self-represented litigants (and, occasionally, even represented litigants) make attempts to appeal that essentially boil down to "the judge (or jury) should have believed me instead", and these appeals simply can't succeed.]

So it appears that the Fourniers aren't challenging the jury's findings.  This is not surprising, but it is significant.  It means that the jury's findings are basically set in stone.  For the purpose of the appeal, and any further litigation between these parties, the jury's findings will be accepted as the truth.

The Injunction

(1) The Charter Pitch

This isn't fundamentally misplaced.  In discussions of 'internet speech', you'll find a lot of people arguing that "freedom of expression" creates something like a free-standing right to say whatever they want without consequence.  It doesn't, and those arguments are wrong, but this is a little different.  For the courts to impose an ongoing prohibition on publication of defamatory remarks is a restriction on speech to which a Charter analysis may apply.

That being said, Charter considerations have long informed the test for defamation injunctions.  It's something of a different test than is normal for injunctions, and that is very much because of the impact on freedom of expression:  If such injunctions were available in every case of defamation, it would be abhorrent to freedom of expression.  Therefore, the courts have developed a compromise solution that permits the granting of an injunction only under certain circumstances.  If that test is satisfied, then it is justifiable (even under Charter scrutiny) to impose an injunction.  (See the next subheading.)

To reiterate, because this is important:  While much of the public commentary hinges on the notion of 'freedom of speech', there is a well-established legal test, which strikes a balance in respect of freedom of speech.  So while rhetoric may turn on the Charter, at the end of the day the court's primary concern will be:  Has the test been satisfied?

In the court below, it appears that the Fourniers argued that the defamatory posts "dealt with matters of public interest".  That may strengthen a Charter analysis, if true, but the finding of malice probably works against them.

Also, while they might think that shutting down the forum and claiming to have been muzzled strengthens the notion that their Charter rights are being infringed, for reasons I explained in my prior post, that seems like something of an overreaction to the injunction.

(2) The Test

Incidentally, the test for 'permanent injunctions' recently came under scrutiny at the Court of Appeal.  In last month's decision in 1711811 Ontario Ltd. (Adline) v. Buckley Insurance Brokers Ltd., the question arose as to whether or not the test for a permanent injunction (which is relatively seldom seen) is the same as that for interlocutory injunctions (which is seen so frequently that any litigator can list off the three elements, and the name of the case setting them - RJR-MacDonald - without hesitation).

The courts had generally applied the RJR-MacDonald test for permanent injunctions, but this never made sense to me - the point of an interlocutory injunction is that it is decided before the merits of the case have been adjudicated, meaning that the court must look at the strength of the case, and the impact on the parties of granting an injunction before rights have been determined.  But with permanent injunctions not generally issuing until after the trial, that concern doesn't exist.

Accordingly, in 2010 the B.C. Court of Appeal rejected this practice, and the Ontario Court of Appeal followed suit in the Adline case.  The B.C. Court of Appeal found that the test for a final injunction simply entails the party seeking it to establish its legal rights, and then for the Court to determine whether or not an injunction is 'appropriate'.  This makes some sense.  An injunction is an 'equitable' remedy, discretionary on the courts, to be awarded in cases where other remedies are not adequate.

Applying the RJR-MacDonald test, a plaintiff would have needed to show 'irreparable harm' (among other things) - meaning that you can't get an injunction unless you can show that, without the injunction, you will suffer harm that cannot be compensated by way of damages.  The B.C. Court of Appeal's analysis likely lowers the bar on this for a final injunction (finding that "irreparable harm" is not, per se, relevant), but an equitable analysis still generally requires the inadequacy of other available remedies, so it isn't much of a change, substantively.  It's still conceptually similar to irreparable harm.

It may well be that the Fourniers intend to challenge the finding of 'irreparable harm', but this is unlikely.  For internet defamation, the existing law has turned on the "distinctive capacity of the Internet to cause instantaneous and irreparable damage to the business reputation of an individual or corporation by reason of its interactive and globally all-pervasive nature and the characteristics of Internet communications..."

More likely, from the wording of the Notice of Appeal, it appears that the Fourniers intend to challenge the element of a permanent injunction which is relatively unique to defamation law:  Generally, a permanent injunction against defamatory remarks will be refused unless the party seeking it can establish (a) a likelihood that the defendant will continue to publish defamatory statements despite the finding of liability or (b) a real possibility that the plaintiff will not be able to enforce a judgment against the defendant.  (See 122164 Canada Limited v. C.M. Takacs Holdings Corp.)

The trouble with this argument is that the trial judge specifically addressed the probability that defamation would continue.  It's hard to read his reasons without concluding that he found, as fact, that defamation would continue.  And factual determinations are hard to challenge, needing to show a complete lack of evidence supporting the conclusion.  Which will be dealt with in the fourth argument...but before we get there, the Fourniers need to attack some of the evidence relied upon by the judge.

(3)  Reliance on the Publication of the Statement of Claim and Notice of Libel

The trial judge noted, in highlighting the persistence of the Fourniers' defamation, that they published the Statement of Claim and Notice of Libel (which would presumably include the particulars of the defamatory statements made against Warman - in order to sue, Warman needed to plead the remarks which he contended were defamatory...which means that, by publishing Warman's pleadings, the Fourniers are likewise publishing the defamatory remarks against him).

This could be an interesting argument.  The Fourniers are relying on the principle of 'open access' to the courts, that they were perfectly entitled to publish the details of the case being made against them.

And, indeed, the Statement of Claim was and is public record.  Anyone can walk into the courthouse and obtain a copy.  And there's nothing inherently wrong with publishing a public-record document (most of the time).  So, unfortunately, in order to proceed with the action, Warman needed to put the remarks themselves down in a document which would become part of the public record.  And all the Fourniers did was publish a document which was already public.

It's kind of compelling at face value, that to fault somebody for publishing a public-record document seems a little heavy-handed.

But it's more nuanced than that, too.  They aren't being found liable for additional damages on the basis of that republication.  They aren't precisely being faulted for it.  The judge looked at it as supporting the inference that, given the opportunity, they would continue to defame Mr. Warman.  Being entitled to do something doesn't mean that actually doing it can't be used to draw inferences about your behaviour.

Whether or not publication of the Statement of Claim by the Fourniers would have been independently actionable may be questionable, but it's probably still fair game to use it to infer a likelihood of continuing defamation.

Besides, open access is important, but it isn't carte blanche to spread defamatory remarks.

Ever see a news report summing up the charges against an individual, and then disclaiming "None of the allegations have been proven in court"?  They do that primarily because "I'm just repeating what I heard" isn't a defence to defamation.  When reporting on such a thing, news media have to be careful that they aren't holding out unproven allegations as being factually true.  (You're allowed to report on the fact that allegations have been made, but if that may be misinterpreted as holding the allegations out as true, you might be in trouble.)

The fact that you may be quoting from, or completely reproducing, a public record document doesn't entirely change the analysis.  In general, I think it might be a stretch to suggest that publishing a court pleading is presumptively holding out its contents - or any part of its contents - as true, but this is a lot more complex than that, in large part because of the defence led by the Fourniers.

If they published the Statement of Claim, and said of it "We never said those things about him", that would probably be hard to criticize.  After all, not only would they not be giving any credence to the alleged defamatory statements, but they'd be implicitly rejecting them.  However, that wasn't their defence.  Until trial, it appears that they maintained the defence of "justification" - i.e. that the statements were true.  Among other things.  In other words, they were publishing the Statement of Claim on their website, and all the while claiming that the defamatory statements in it were true.

Combine that with the finding of malice, and it lines up a pretty good pitch - which the trial judge appears to have accepted - that the publication of the Statement of Claim was the Fourniers' way of keeping the libellous remarks alive for the world to see.

(4) The Evidence Defamation Would Continue

This ground of appeal is set out thusly: that there was "the absence of direct evidence that the appellants had repeated or intended to repeat the defamatory words after the words were removed in May of 2008".

The test for a defamation injunction looks to the future - the conduct sought to be prevented.  So, strictly speaking, the 'since May 2008' portion is not likely to be directly relevant; the question is whether or not defamation was likely moving forward from the order in 2014.

And not only is "direct evidence" not required; in that light, a requirement for "direct evidence" would be incoherent - by its very nature, "direct evidence" is almost always incapable of showing future events, or the intentions of an adverse party.  Invariably, when asking "Is the defendant likely to continue to defame the plaintiff", there's always going to be some level of inference.

But I see why the Fourniers framed it that way; they want to pitch the following:  As far as the record is concerned, we haven't said anything defamatory in nearly six years.  If it's true that they didn't continue to defame him, that might be a factor tending towards a conclusion of "Why would they start now?"  But while it might be factually relevant to the legal question, asking an appellate court to substitute a new inference for a finding of fact by the court a tall order.

Of course, if the Fourniers don't successfully argue that the judge's reliance on the publication of the Statement of Claim was misplaced, this whole pitch fails entirely, the counter-argument being "Yes, you continued to publish them.  For the whole time, you published a document which set out the defamatory remarks, and publicly took the position that the statements were true."

But I also have a problem with the argument itself, in that it would create a bit of a moving target for the plaintiff's evidentiary burden:  If I'm suing you for defamation, I'll pick the statements I want to rely upon, obtain my evidence that you said them, and move forward with an action.  If you continue to defame me, then I could theoretically amend my claim to add the new allegations, but unless it significantly strengthens my case in some way, I might not do so:  The amended claim would potentially necessitate another round of documentary disclosure and oral discoveries, which can significantly delay the proceeding.  If you keep defaming me, and I keep amending my claim to include the new defamation, we will never get to trial.

Unfortunately, procedural fairness generally prevents courts from being able to adjudicate issues as they arise in real time.  So it's not practical to expect a plaintiff to lead evidence of defamation continuing up to the date of trial, and accordingly not prudent to consider an omission of such evidence as vindicating.

Perhaps more importantly, even the history isn't all that favourable to the Fourniers:  The trial judge noted that the removal of the materials from the forum didn't occur "until approximately seven months after being served with the plaintiff's Statement of Claim and nine months after being served with the plaintiff's first Notice of Libel."  That's probably relevant.  And it couples with the finding of malice, and the fact that they have consistently refused to apologize for or retract the statements.

(Incidentally, even if they succeeded on this, their own submissions in the costs proceeding could come back to hurt them:  They argued that, being individuals of limited means, only a nominal costs award should be made.  Remember:  The test for an injunction on a defamation action is disjunctive - it requires x OR y.  Even if you can't show that the defendant is likely to 'do it again', you can get an injunction if you can show that collecting on your judgment may not be possible.  So when the defendant comes in saying "We can't afford to pay the plaintiff's costs"...)

Summary of Injunction Appeal

On my read of the grounds for appeal, it seems to me that the Fourniers absolutely need to succeed on two central points:  That it was improper of the trial judge to rely upon the publication of the Statement of Claim, and that, without relying on the publication of the Statement of Claim, the facts are incapable of sustaining the inference that they would continue to disseminate the defamatory statements.

The finding of malice really hurts the Fourniers a lot - they illustrated a great deal of reluctance to take down the defamatory posts in the first place, fought the litigation tooth and nail, all to protect what the jury found was a malicious effort to injure Warman's reputation.  It makes them pretty unsympathetic, arguing that they shouldn't be prevented from doing it again.

One of the key questions for me is this:  Would they be prepared to moderate their forum?  If there was no injunction, and one of their posters started posting defamatory remarks about Warman, would they proactively work to delete these remarks?  And this is where the 9-month delay in deleting the remarks really works against them:  They showed such reluctance to take down the offensive remarks, despite the threats and reality of legal action, that it's very clear that moderating their forum - at least, in terms of deleting remarks about Warman - is something that they really don't want to do.  (In this sense, shutting down the forum doesn't really help their case.  As I argued previously, it would be hard to hold them in contempt if they proactively moderated their forum and removed defamatory comments as soon as they discovered them.  The fact that they decided instead to shut down the forum altogether may indicate an ongoing reluctance to do so.  If I had to guess, I'd speculate that they find the notion of 'censoring' their members to be abhorrent.)

Their historical conduct that is on the record is probably sufficient, standing alone, to justify a conclusion that they're likely to revert to the old status quo, given an opportunity.  Now, if they had led evidence of the measures that they have taken to prevent further the publication of further defamatory remarks (implementing and enforcing anti-defamatory rules on the forum; appointing moderators to enforce the rules; instances of the rules having been enforced), that might have undermined the connection between their past conduct and likely future conduct.

As it is, though, it's looking like an uphill battle.


They have to seek "leave" to appeal costs, though in practice that is a fairly technical step.  Typically, the Court of Appeal decides the 'leave to appeal' application at the same time that it decides the appeal itself, and decides "leave" based on an analysis as to whether or not there's an arguable ground of appeal.  Meaning that the parties go in and argue the merits, and then the Court decides whether or not the grounds are sufficient to warrant hearing the appeal.

However, it underlines a simple fact:  Costs are discretionary, and are very difficult to appeal successfully.  It requires the appellant to illustrate an error in principle.

They're making two arguments to this effect.

Costs Argument #1:  The Recovery was Within the Small Claims Court Jurisdiction

I previously noted what looked like a strange argument described in the costs decision, that Warman's offer to settle had been within the Small Claims Court jurisdiction, and therefore Warman should be denied costs.  I remarked that it kind of looked like a reference to Rule 57.05, which permits the court to decline to award costs where the amount recovered would have been within the Small Claims Court's jurisdiction.  But an offer to settle doesn't trigger that provision.

The Notice of Appeal frames this argument in a less-nonsensical way:  The damages awarded, while cumulatively reaching $42,000, are within the Small Claims Court jurisdiction as against each defendant.  And therefore, under Rule 57.05, Warman shouldn't have gotten costs.  The reference to the offer to settle might have been a nod to Warman's own assessment of the value of the case, suggesting that he didn't expect to beat the Small Claims Court jurisdiction.  (Not a solid inference, necessarily.)

There are still a few challenges to this argument.  Firstly, Rule 57.05 is still highly discretionary.  Where it was reasonable to pursue the action at the Superior Court, Rule 57.05 is seldom invoked, even if the ultimate award is less than $25,000.  In a case where the damages are uncertain, and could reasonable have been estimated at more than $25,000, Rule 57.05 consequences are not generally to be feared.

Secondly, the subtext of the argument is that, instead of going to the Superior Court, Mr. Warman should have commenced several distinct actions against the defendants at the Small Claims Court.  That may or may not have been technically available.  (It's especially tenuous to say that the actions against the two Fourniers should have proceeded separately, which two awards did cumulatively exceed the Small Claims Court jurisdiction.)  But it's frowned upon.  Multiplicity of proceedings is to be avoided, and despite the jury's allocation of damages as against each defendant, there's overlap in the torts committed by the different defendants, so it probably wouldn't have made sense to pursue each defendant separately.  If he did so, it would have created mounds of additional paperwork and procedural redundancies.  (I've had cases before which could have been heard together at the SCJ, but instead went separately to the Small Claims Court.  It's pretty unwieldy.  In other words, even if it were only about the monetary claim, it was still pretty reasonable to proceed at the Superior Court.

Thirdly, the choice of whether or not to proceed separately against the defendants is within the plaintiff's discretion.  It's not even just a matter of whether or not it's reasonable; it was open to Warman, as plaintiff, to proceed in that manner, bringing one action against all defendants.  That action, which was at minimum permissible, generated an award of damages outside the Small Claims Court's jurisdiction.  It would not have been available to him to bring one action at Small Claims Court, seeking $42,000.  Strictly speaking, I wouldn't think that Rule 57.05 is engaged by the award of damages in this case.

Fourthly, injunctive relief isn't available at the Small Claims Court.  The injunction renders the case outside the scope of Rule 57.05.  In other words, if the Fourniers fail to defeat the injunction, this whole argument is toast on that basis alone.  But even if the injunction is reversed, that still doesn't make it unreasonable to have sought it, and proceeded to the Superior Court to do so.

Fifthly, one of the factors in determining whether or not to invoke Rule 57.05 is whether or not the case was appropriate for resolution at the Small Claims Court.  The Small Claims Court is designed for an expeditious resolution with less rigourous procedural fairness obligations.  The defendants opted for a trial by jury, which wouldn't be available at Small Claims Court, and is a big step up in terms of 'procedural fairness', increasing the cost and complexity of the trial.  It seems strange for the defendants to insist on the rigourous procedural protections of a jury trial, and then nonetheless come back and argue that the case should have been brought at the Small Claims Court.

I would generally be reluctant to appeal a refusal to apply a discretionary provision like Rule 57.05.  But in a case involving an injunction and a damage award of $42,000?  It seems like a stretch.

Costs Argument #2:  Proportionality, Substantial Indemnity Costs, and Punishing the Defendants

I noted the proportionality issue in my last entry, that it's really unusual to see a costs award of $85,000 on a judgment of $42,000, for reasons of proportionality.  However, it's less unusual in a defamation action, where the value of 'vindication' and restoring one's reputation may be significantly higher than the amount of the judgment itself.

The trial judge gave detailed reasons as to why proportionality didn't prevent such a large award in this case.  Among the reasons was that the defendants had mounted a rigourous defence to the action:  They advanced defences, requested discoveries, requested a jury trial, and insisted on their day in court without offering or agreeing to any reasonable compromise.  All of which, of course, they were entitled to do.

But the notion that they are being 'punished' by the costs award is not accurate.  Costs are, generally speaking, designed to indemnify a party for being forced to incur legal fees to secure his legal rights.  They are not (again, generally speaking) punitive in nature.  Nor are they punitive here.  The Fourniers were entitled to their day in court.  And they were entitled to insist on all manner of procedural protections to make sure it is a fair trial.  But in a 'loser pays' system, when you run up your opponent's legal bills by doing so, you run the risk of having to pay a large part of that bill at the end of the day if you're unsuccessful.

This is especially true when you were offered a reasonable 'out' earlier in the process - where, as here, the plaintiff offered to accept a relatively small sum in settlement of the claim.  The Rules are built in such a way that, most of the time, this will result in "substantial indemnity" costs.

The judge found that "substantial indemnity" was the appropriate basis for an award, because Warman had offered to accept a small settlement early in the process.  At the end of a six-year process, culminating in a three-week jury trial, he obtained a judgment for more than four times what the defendants could have paid him at the outset.  Under those circumstances, substantial indemnity costs would ordinarily be expected, and a judge would have to have a reason to not do so.

The bottom line, looking at the trial judge's decision, is this:  Warman was justified in pursuing the case, he offered very reasonable settlements to the defendants throughout, but the defendants forced him to incur very significant fees to pursue his rights.  The fees he incurred were reasonable, not out of scale to what the defendant should reasonably have expected to pay, nor disproportionate to the importance of the issues to him.

At the end of the day, the judge pretty thoroughly evaluated the factors for costs, and came to a conclusion fairly consistent with other defamation cases.


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.

Friday, February 21, 2014

Mountie Union Case Update

I have twice before posted about the ongoing constitutional litigation relating to an attempt by members of the RCMP to form a union.  To briefly sum up, the RCMP is excluded from the general labour relations regime covering federal government employees, but instead has a mechanism called the Staff Relations Representative Program ("SRRP"), established by regulation to consult with management on behalf of the workers.  In effect, the law creates the SRRP, and relieves the RCMP from having to deal with traditional 'unions'.

There are, however, a number of 'voluntary associations' (including the Mounted Police Association of Ontario, or MPAO), and they are trying to challenge the status quo, seeking an entitlement to bargain on behalf of Mounties.  And after succeeding at the Superior Court of Justice in 2009, and subsequently being defeated at the Ontario Court of Appeal in 2012, the Supreme Court heard the appeal this week.

I would expect the decision to be a while coming.  But there's some commentary to be made in the mean time, in light of the press the case is getting.

I've seen a quotation of MPAO President Rae Banwarie, published in a couple of sources, arguing that it will be a landmark decision if they lose:
It will be the beginning of the end for collective bargaining in Canada, as employers could justifiably impose labour programs and deny employees the right to select independent associations to bargain on their behalf.
The truth is far more nuanced.

Firstly, it's important to understand where this different treatment for Mounties arises.  It is not the case that the RCMP Commissioner woke up one day and said, "Let's ban unions, and create the SRRP."  Rather, the different treatment tracks to express language in statutes and regulations.  It's true that government is not exactly arm's length from the management of the RCMP, but it's an important distinction when extrapolating the impact of the case.

If the SCC decides against the MPAO, it is absolutely not the case that the case will result in the average private sector employer being able to say, "We're going to follow the RCMP model, and implement an SRRP instead of letting our people unionize."  They continue to be subject to applicable labour relations statutes, which are not at issue in the MPAO case.  There's no slippery slope here, no catastrophic consequence of upholding the RCMP status quo.

Strictly speaking the case isn't at all about what employers are able to do; it's about what the government can say about labour rights and obligations.  And the government, at all levels, already provides robust collective rights to most employees in most sectors, through existing labour relations legislation.

Most employers would not be able to do anything significantly differently unless the government decided to change those labour relations statutes.  To the extent that the MPAO case, even theoretically, could have widespread impact on private sector employers, it's a question of the extent to which the government would be entitled to make such changes.

(As a side note, 'voluntary recognition' is available to private sector employers in Ontario - an employer can bring in a friendly union to become the bargaining agent.  However, a voluntary recognition is subject to attack by the employees.)

But wait, there's more!

Secondly, the decision at the Court of Appeal turned heavily on the facts of the case.

The ability to form voluntary associations is a mark against the MPAO's case.  Unlike the Dunmore case, where the lack of a statutory labour relations regime created a chilling effect making it 'effectively impossible' for agricultural workers to embark upon collective action, the Mounties have been able to form these associations without difficulty.

Perhaps more importantly, the application judge had found that the SRRP was an effective mode of employee representation - i.e. that the consultations between the SRRP and management were taken seriously and in good faith.

Ultimately, the Court of Appeal decision turned on the notion that the RCMP has not been denied access to meaningful collective action.  So to the extent that an MPAO loss would set a precedent that the government is entitled to scale back labour relations protections, that proposition would be tempered by the condition that the resulting scheme still has to provide meaningful collective rights.

Personally, I generally liked the Court of Appeal decision on the matter.  The notion that the constitutional freedom of association entitles everyone to a specific model of labour relations - i.e. the Wagner model - would unduly tie our hands.  The Wagner model is the predominant form of labour relations in North America, but it is not without its flaws, and other models have been employed elsewhere.  (Incidentally, there's a problem with the MPAO position in that even the model it advocates - as being constitutionally mandatory - doesn't really mesh completely with Wagner as well.)


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.

Saturday, February 15, 2014

Minimum Wage to Increase

The Government of Ontario recently announced that the minimum wage will rise from $10.25 to $11/hour as of June 1, and then be indexed to inflation afterwards.

The immediate increase essentially represents an inflationary increase from 2010, when it last increased.  Tying it to inflation moving forward could be a perpetual solution to the historical stop-and-go movement of the minimum wage.

There are a number of anti-poverty advocates arguing for a $14/hour minimum wage, pointing out that a full-time worker making $11/hour is still under the poverty line; Premier Wynne responds that such a significant increase would be too much for business to absorb at once.

There are several philosophies on the minimum wage - some believe that it is an unwarranted and harmful interference in the market, that having a minimum wage destroys jobs, that raising it will destroy more.  The status quo has long been that a modest minimum wage is a fair way of combating poverty.  A more progressive approach entails a minimum wage that ensures a reasonable standard of living.  Then there are more revolutionary ideas, alternatives to the minimum wage such as a guaranteed income or guaranteed minimum income.

The status quo is 'safe', and indexing minimum wage to inflation is an inherently safe approach.  At the end of the day, though, the policy analysis for the alternatives is very complicated.

Poverty Wages and Indirect Subsidies

There's an oft-ignored aspect of the minimum wage debate:  To the extent that an individual, who is working full time, can't make ends meet, they end up reliant on the taxpayer to get assistance with the shortfall.  This amounts to a government subsidy of low-wage industries.

Everyone needs a certain basic standard of living.  Food, clean water, shelter, electricity, clothing, transportation, health care, etc.  Without these things, people cannot survive.  There have been times in the past when employers were prepared to work impoverished unskilled labourers to death, literally, knowing that there are ten more to take his place.  However, it's really no way to run a business, and moreover from a public policy perspective it is not a result that we will tolerate.  So the government (and sometimes the public too) steps in to assist impoverished workers to maintain a basic standard of living.

There are a number of different ways of 'valuing' labour, but there is no cogent method that will result in a value of labour such that full time labour will not provide sufficient money for the subsistence of the labourer.  Simply put, the subsistence costs of the labourer are the lowest possible base cost of producing the labour, and it is never economical to perpetually sell something for less than the cost of production.  Which means that, if I'm paying you less than a living wage, and you're turning to the government to make up the shortfall, the result is that the taxpayer is subsidizing the cost of production of the labour I'm receiving.

That's a subsidy.  We as taxpayers are indirectly paying the cost of production of all companies that pay less than a living wage.

Distribution of Profits and Direct Subsidies

The concern, of course, is that if we increase the minimum wage, businesses will close down, or reduce staff - instead of their workers becoming less reliant on government, their workers will become entirely reliant on government.

However, while this threat has a simplistic weight to it, it's more complicated than that.

Firstly, the vast majority of minimum wage employees are working for business models which could theoretically absorb the increased cost.  But to understand the challenges in raising the minimum wage, we need to understand where that money goes:  A great many minimum wage employers are large franchise arrangements.  Consider Tim Hortons:  Almost all Tim Hortons stores are owned by small businesses, with no more than a handful of stores.  The owner of the store makes some money, though not a huge amount, and would have a hard time bearing an increase in the minimum wage.

Tim Hortons as a business, however, is quite lucrative.  The franchisor (and its shareholders) make a significant amount of money off of each store, and the franchise agreement are negotiated in such a way, based on the relative bargaining power of the parties, to maximize the prospect of it being a beneficial arrangement on both sides.

Gradual increases to minimum wages will change that calculation.  It will have the result that the franchisees will require a better deal from corporate Tim Hortons in order to keep their stores profitable.  And corporate Tim Hortons wants to keep the stores profitable, and therefore will have to concede.  Too much of an increase, however, at too fast a rate, risks an inability to make the necessary adjustments.

Secondly, while there are business models, or individual businesses, that would struggle with the minimum wage increase, the change does not necessarily result in them going under.  It puts us into the position of having to choose:  Is this business worth subsidizing?  Or should we let this business, which cannot afford to pay the cost of its own production, go out of business and leave a void in the market for a stronger business model to fill?

By making that choice, we start to ask the right questions - it's no longer about giving charity to low-paid workers, but rather about whether or not a business provides enough social value to warrant spending taxpayer money to keep it afloat.  And remember, we're already doing that, not only for the businesses that need help, but also for immensely profitable chains.

In other words, there is no compelling policy reason for a perpetual minimum wage below the poverty line.  Though I would tend to argue for a gradual shift to a living wage.

Guaranteed Minimum Income

There are other theories of how to approach the minimum wage.  One is to expand the welfare system, to provide a guaranteed minimum salary on the scale of a living wage, with partial clawbacks as people start making money, without needing to enforce a minimum wage.

It's the worst of all worlds, in my view.  It means that we're immensely subsidizing companies who hire low-paid employees, and devaluing labour; it messes with the incentives because there's less reason to take a low-paid job...basically, unless you hit exactly the right balance, you'd end up either with a labour shortage, and nobody willing to work at Tim Hortons for wages it can afford to pay, or you'd end up still with a surplus of unskilled labour, and therefore Tim Hortons would be able to pay rock-bottom wages and we're picking up the tab for the labour costs.

Guaranteed Income, Simpliciter

This is an interesting theory.  The cost is likely immense, and probably impractical without a fairly significant reorganization of our tax system, but still interesting.  It's being canvassed in a Swiss referendum, and worth paying attention to, at least.

In practice, it's exceedingly simple:  Give a monthly cheque to everyone.  Don't make it need-based, don't claw it back from people making money (except via income tax), don't ask people to prove eligibility...just keep sending cheques.

It shouldn't be a huge amount of money - just enough that people without jobs can scrape by.  If you want to do more than merely scrape by, you need to work for that money.  Minimum wage would be unimportant.

There are down sides.  It messes with incentives, though not as much as a guaranteed minimum income would - this way, you aren't punished by clawbacks for actually getting a job.  It could create a labour shortage in certain areas, though.  And there's a concern of a 'welfare culture' - i.e. that making it too easy to live perpetually without a job will endorse a set of values in some communities that you don't need to get a job.

Most importantly, the cost of the program would be prohibitive.  I won't take you through the math, but suffice it to say that we'd need to pay a lot more taxes (probably largely through increased VATs) to even imagine making it work.

But there are huge theoretical advantages, too:  Poverty is associated with a lot of social costs - the poor tend to have higher health care needs, tend to engage more frequently in criminal activity, not to mention the huge administrative and oversight costs associated with current social assistance programs, trying to filter out folks who aren't eligible.  Giving people enough to live on would result in less crime, less strain on our health care system, and improved effectiveness of education for facilitating greater economic activity in the long term.


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.

Friday, February 7, 2014

Thornhill By-Election: Don't Forget to Vote!

Two Ontario by-elections are scheduled for next week - Thursday, February 13, 2014 - in Thornhill and Niagara Falls.

I cast my vote in an advance poll this morning, because I'm not going to be available on election day.

There is no good reason not to vote, for those entitled to cast votes.  It doesn't take a lot of time, and it's about asserting your voice in government.  Politicians play to the voters.  They don't care about the non-voters.  And so non-voters have no voice in government policy.

Not voting is not a protest.  It is not a statement.  It is an expression of apathy, and is taken by politicians as a blank cheque.  We don't require a quorum of voters; we don't fire politicians if voter turnout is too low.  Low voter turnout has the consequence that an ever-smaller group of people can control the election results.  Consider this:  Rob Ford won 47.1% of the popular vote in Toronto in 2010.  Which, in a First-Past-the-Post system, is a pretty strong win, with an 11.5-point lead over the second place candidate.  But voter turnout was 53.2% - which is sadly a relatively strong turnout, compared to prior elections with turnouts in the high thirties range.

Of about 1.53 million eligible voters in Toronto:

  • 383,501 voted for Ford;
  • 289,832 voted for Smitherman;
  • 95,482 voted for Pantalone;
  • 45,169 voted for the dozens of other Mayoral candidates, cumulatively; and
  • Approximately 700,000 eligible voters simply did not vote.

The clear winner, by a landslide, was voter apathy, and unfortunately that does not contribute to responsible government.  Sadly, that is not unusual.

Even if, as in Thornhill, the race was basically a foregone conclusion from the outset, it's still critical to get out and vote.  Thornhill is frequently a battleground between Liberals and Conservatives, but Governments seldom gain seats in by-elections.  Despite the unfortunately Duffy-esque circumstances of Progressive Conservative MPP Peter Shurman's departure, it's hard to imagine the Liberals or NDP picking up the seat under these circumstances.  Niagara Falls, by contrast, which was formerly Liberal-held, appears to a battleground between NDP and PCs.

Whether you prefer the PCs and expect them to win anyways, or support some other party and figure your vote is too little to make a difference, none of that matters.  You have one vote.  You can use it, and be part of the group trying to elect a candidate, or you can stay home, and be part of the group that steps aside and lets other people choose government.  (And if that's the case, I'd best not hear you complain afterwards about the choice that you let other people make.)

How to Vote

I'm not going to tell you to vote any given way.  That's not the point.  Those of you who are in affected ridings should get out there and vote for whichever candidate you want to win.  Those of you who aren't...should still take this to heart, because we're presumably looking at an Ontario and Federal General Election in October of next year, as well as municipal elections later this year.  There's no time like the present to start paying attention to what our leaders are doing.

I don't consistently vote by party.  I have my own political views which tend to make me more amenable to some parties' usual policies than others, but I look at a number of factors when I vote:  The party's policy platform and/or record; the party's leader; and the individual candidate.

While I couldn't fault anyone for suggesting that we have something of a dearth of desirable options in Ontario at present, I also don't believe in 'protest' votes.  Nothing good comes out of protest votes - the very notion is that you're voting for somebody you don't actually want to win, endorsing a policy agenda you don't support, and if by some chance enough protest votes run that way, it is possible to accidentally elect an undesired candidate.

(Strategic voting is a more nuanced question.  It is an attempt to defeat the limitations of FPP electoral systems by predicting the likely outcomes and voting to support the better of the likely outcomes, as opposed to 'wasting' your vote on a preferred-but-less-likely outcome.  It's about 'lesser evils', and while it makes a lot of sense in almost any given election, in the long term it basically cements a two-party system in a perpetual catch-22 for alternatives:  Nobody will vote for you until you can show a reasonable chance of winning, but you can't show a reasonable chance of winning unless you have a track record of securing votes.)

Who's Running in Thornhill?

By-election ballots are traditionally longer, as a number of activists put themselves on the ballot.  There is no strict requirement to have any connection to the riding in which you're running, so there are individuals who run in basically every by-election at all levels.

Thornhill's ballot has 8 candidates:  There are the 'traditional' options of the PCs, Liberals, and NDP; the long-established alternatives like the Greens, the Libertarians, and the Freedom Party (these six were on Thornhill's ballot in the last Provincial election); and then there are the "People" party and the "Pauper" party, respectively represented by Kevin Clark and John Turmel, both of whom put themselves on as many ballots as they can.  (You might recall my very first "Stranger than Fiction" post in 2011, featuring an action by Mr. Turmel.)

In the interests of brevity, I'll quickly overview a couple of points about the PC, Liberal, and NDP candidates.

The Tories

The PC Candidate is Gila Martow.  Ms. Martow is an optometrist who has long been active in volunteerism in York Region.  Ms. Martow heavily criticizes the pending increase to the minimum wage, calling it a "vote-buying, feel-good kind of message", arguing that most minimum-wage earners are teenagers living at home, and that there are few if any families, especially Thornhill, subsisting on minimum wage income.

Unfortunately, Ms. Martow's beliefs are generally not consistent with the facts.  While Thornhill is undeniably a largely-affluent community, there are nonetheless a significant number of minimum-wage earners even there.  Likewise, while a great many minimum-wage earners are young people, they don't have anything close to a monopoly on it.  Province-wide, according to a study last year by the Wellesley Institute, 9% of Ontarians are earning minimum wage (up from 4.3% in 2003), and of those 39% are 25 or older.  Furthermore, there are disproportionately high numbers of women, racialized Ontarians, and recent immigrants working for minimum wage.  (It isn't clear to me on published numbers whether or not it is strictly true or false that a 'majority' of minimum-wage employees are teenagers, but either way it seems questionable to imply that minimum wage is a non-issue.)

Not surprisingly, given the nature of by-elections, Ms. Martow is a clear front-runner in the polls.

The Liberals

The Liberal Candidate is Sandra Yeung Racco, Vaughan Ward 4 Councillor, and wife of Mario Racco who represented the riding in the first term of the McGuinty government.  She speaks significantly of transit solutions, including stating that she would support a new gas tax if the proceeds went to funding public transit, and that she would fight for a subway extension into Thornhill.

A York Region subway is on the Liberal policy agenda, though there's still no specific funding plan or timeframe, making it hard to attach much credibility to.  As well, with the gas plant scandal still casting a pall over the Liberals and Wynne still relatively untested in her role, Yeung Racco faces a steep uphill battle.


This is Cindy Hackelberg second election campaign.  In 2011, she was given the NDP nomination after the party rescinded the nomination of another individual following circulation of an article he had written which was highly critical of the party and of Horwath.  Her biography indicates that she works (or has worked?) as a journalist, and also works as a manager for a high-tech company.  Most of her election pitch appears to be built on the traditional NDP 'alternative' narrative, and she has argued that transit funding should come through new corporate taxes, to avoid placing the burden on families.


Elections are about giving the people a voice in government, by allowing them to choose who speaks for them.  It is the only direct input we have into government.  Polls are useful; trends are important; but at the end of the day the choice comes down to the one you make when you get out and vote.