tag:blogger.com,1999:blog-8560894381298667267.post5046249658944349546..comments2023-10-25T00:48:14.046-07:00Comments on The Buchanan Ontario Workplace Law Blog: Another Analysis of "Appropriately Dealt With"Unknownnoreply@blogger.comBlogger8125tag:blogger.com,1999:blog-8560894381298667267.post-83404295241890131032013-10-29T02:11:05.262-07:002013-10-29T02:11:05.262-07:00The Employment Standards Act focuses on particular...The Employment Standards Act focuses on particular issues concerning workers and the ability to make such individuals comfortable within the work environment. This i described fully in my blog <a href="http://writing-help.com/blog/the-employment-standards-act-and-the-british-columbia-human-rights-code-tiles-and-carpet-our-sample-paper/" rel="nofollow">The employment standards act and the British Columbia Human Rights Code: tiles and Carpet</a><br />Anonymoushttps://www.blogger.com/profile/01452607739836166133noreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-78401667466874620152011-11-12T20:03:07.781-08:002011-11-12T20:03:07.781-08:00Ontario’s legislative history demonstrates that th...Ontario’s legislative history demonstrates that the legislature’s intention was to make it harder to dismiss complaints through the introduction of Bill 107 in 2006 to amend the former Ontario Human Rights Code. Before the amendment, the Commission had broad powers under s. 34 of the former Code to exercise its discretion to decide not to deal with the complaint, under s. 34(1)(a), the Commission may decide not to deal with a complaint if it could or should be more appropriately dealt with under another Act. Particularly in respect of unionized employees, complaints have been routinely dismissed under s. 34(a) on the basis that they could or should more appropriately be dealt with in grievance arbitration. Under the new amendments of s. 45.1, the Tribunal have much more limited power to dismiss complaints comparing the Commission’s broad power to dismiss complaints under the former Code.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-49168232781493755102011-11-11T08:18:57.983-08:002011-11-11T08:18:57.983-08:00To be clear, Ontario has its own Hansard, which I ...To be clear, Ontario has its own Hansard, which I haven't reviewed in this context, and which may or may not shed some light on the legislature's intentions.<br /><br />I'm inclined to agree with you that the wording of s.45.1 is intended to give a broad discretion to the Tribunal. Chief Justice McLachlin and Justices Binnie, Cromwell, and Fish would presumably agree with you as well.<br /><br />Whether the contextual differences would persuade Justices Abella, Deschamps, Rothstein, and LeBel to find differently in Ontario...frankly, I wouldn't count on it.<br /><br />In advocacy, there's a distinction between 'why' and 'how'. We show the Court *why* they should side with us, making compelling arguments that appeal to basic notions such as morality and fairness, and then we show the Court *how* the law can be interpreted to come down on our side. This is why we say that "bad facts make bad law".<br /><br />So when Justice Abella interpreted the provision as giving a narrow discretion, particularly given the flaws in statutory interpretation pointed out by the dissent, it's probable that her conclusion was driven more by policy considerations of finality rather than by the technical aspects of statutory interpretation that I'm pointing out.<br /><br />But it's fairly hypothetical, trying to speculate as to what the Supreme Court will say. The composition of the Court changes often enough - both the dissent and majority are already losing one member - and we can't even guess if they will ever even consider the question. I doubt they would unless the Ontario Court of Appeal actually distinguished Figliola.Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-5079013026074331772011-11-10T16:55:22.260-08:002011-11-10T16:55:22.260-08:00Thanks. I have read again s. 45.1 in Ontario's...Thanks. I have read again s. 45.1 in Ontario's Code. In my understanding (may be wrong), the provision is single and independent, and its language and wording have intended by the Ontario legislature to give HRTO a broad (actually very broad) discretion rather than a narrow one, as it states: “…if the Tribunal is of the opinion…” On its face, the dicretion in s. 45.1 is indeed broad and wide... My question is if the same Figliola case happens in Ontario and also finally went to the SCC, same case but different Code provision and different legislative history (no 'Hansard'), then what will the SCC say? I think definitely not it will end up 5/4 split court like in BC...isn't it?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-84674670228663442462011-11-10T14:46:27.948-08:002011-11-10T14:46:27.948-08:00I'm not sure I agree with that characterizatio...I'm not sure I agree with that characterization. A "rubber stamp" suggests that their approval is needed. It isn't. Unless specifically excluded by statute, every administrative tribunal has the power to address human rights issues. The majority decision here suggests that, if they've exercised that power, <br /><br />This prevents re-litigation of the same issue. There are persuasive policy reasons behind that.<br /><br />Where a person "lacks the financial resources"...that's a broader access-to-justice issue, and allowing a second low-cost venue to consider the same issue again doesn't solve that problem.<br /><br />It's where the union refuses to seek judicial review that I see there as being a potential for real injustice. You can't hold the Union to account unless its decision not to proceed was arbitrary, discriminatory, or in bad faith. You can't seek judicial review of the decision because you lack standing as a non-party. And you can't bring a new application where *you* would be the party because it would create duplicate proceedings. It's a complete bar on seeking recourse to which a person might have legitimate entitlements.Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-52374963376354233202011-11-10T14:35:00.041-08:002011-11-10T14:35:00.041-08:00So according to this SSC's ruling, at least in...So according to this SSC's ruling, at least in British Columbia, the BCHRT will acted like a "rubber stamp" to dismiss every previously decided decision, even the decision is undeniably wrong and lacks of any analysis of human rights principles or not appropriately dealt with...Do you think is it fair for the tribunal to simply dismiss the case for people or group who was discriminated against but lacks financial resources or his/her union refused to judicially review?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-17666484342205150352011-11-09T11:58:03.300-08:002011-11-09T11:58:03.300-08:00Indeed. I'm inclined to think that the decisi...Indeed. I'm inclined to think that the decision came out too soon after Trozzi for the applicant's decision to have been influenced by it, so I would speculate that dropping the case was driven by a settlement of some sort.<br /><br />Kind of a shame, from an academic perspective - I would have liked to see how the Div. Ct. would have dealt with it - but one never assumes that any particular case will be heard by any particular level of Court. Settlements happen so frequently that actual hearings only occur in a small minority of cases.<br /><br />For example, Trozzi could appeal the Div. Ct. decision to the Court of Appeal...but we'll only see such a decision if (a) she has the resources to do so or can get free legal assistance in doing so, (b) she thinks her chances of success high enough to take the risk, and (c) it doesn't settle along the way. Whether or not she does is something we likely won't know until and unless it shows up on the Court of Appeal's schedule.Dennis Buchananhttps://www.blogger.com/profile/02338198640943823828noreply@blogger.comtag:blogger.com,1999:blog-8560894381298667267.post-5216543460100422342011-11-08T10:41:06.284-08:002011-11-08T10:41:06.284-08:00Hello Dennis, I'm the anonymous who follows yo...Hello Dennis, I'm the anonymous who follows your s. 45.1 entries, the decision for Barker v SEIU was just released (http://canlii.ca/s/6lom8). The case closed. Barker left to withsdraw and SEIU decided not to judicially review HRTO's interim decision (not to dismiss).Anonymousnoreply@blogger.com