There's an interesting series of cases proceeding before the Human Rights Tribunal of Ontario (HRTO), including the recent decision in Fawzy v. Paris Jewellers.
Mr. Fawzy's allegation is that he reported to the employer sexual harassment allegations made by two of his staff members, Ms. Biazrov and Ms. Shiwrat, and all three of them were fired as a result. (Mr. Fawzy appears to have been dismissed in 2011, and the others were dismissed many months later in 2012.) Mr. Fawzy's version of events appears to be that the alleged harasser had a close relationship with management, and therefore management did not want to properly deal with the complaints, and instead cleaned house. It appears that the employer acknowledges that there were sexual harassment allegations, and that Mr. Fawzy communicated the allegations to the employer, but takes the position that his dismissal was for unrelated reasons.
All three filed applications, and the Tribunal queried whether or not the three should be consolidated, and requested that the parties advise if they objected to the consolidation. As well, Mr. Fawzy requested production of various documents, including the report resulting from the employer's investigation into the misconduct.
Consolidation
The employer made submissions arguing against the consolidation of Fawzy's application with the others, on the basis that the proceeding will focus on Fawzy's alleged performance issues, and not the allegations of sexual harassment themselves.
The Tribunal accepted this argument: The material facts to Fawzy's application are that he related allegations of sexual harassment to the employer, and the employer did not dispute that. Whether the allegations were justified is immaterial, and Mr. Fawzy's hearing will "not need to include evidence on whether the sexual harassment occurred, or whether Mr. Fawzy reported harassment complaints to the [employer], whereas Ms. Biazrov's and Ms. Shiwrat's hearing will need to focus on that evidence."
Disclosure
While some of the disclosure requests were granted, the report was not. Again, the Tribunal finds that whether or not the harassment was justified is not material to Mr. Fawzy's application, and therefore there is no reason that the report needs to be disclosed - if there was a reprisal, it exists regardless of whether or not the complaints were ultimately substantiated.
Similarly, while Mr. Fawzy asked for production of the alleged harasser's resume, on the theory that it would demonstrate that the harasser was unqualified for the position, thereby supporting his theory of nepotism, the HRTO concluded that the reasonableness of the employer's response to the complaints was not material to whether or not it engaged in reprisal against Mr. Fawzy.
My Thoughts
I would question this decision. Most of its conclusions ultimately turn on the premise that whether or not the employer dealt with the complaints themselves reasonably and in good faith is immaterial to whether or not Mr. Fawzy experienced reprisal.
Let me first highlight one important fact: It does not appear to be particularly clear that Mr. Fawzy's action, in advising the employer of the harassment complaints, is one which triggers reprisal protection. Reprisal protection covers enforcing one's own Code rights, and refusing to infringe another's Code rights. Mr. Fawzy's conduct is only protected if it can be characterized as a 'refusal to infringe' the Code rights of Ms. Biazrov and Ms. Shiwrat, though I would argue that a purposive interpretation of the provision would tend towards such a conclusion.
While that is important, it is in no way determinative of this decision. If his actions did not trigger reprisal protection, the case falls off the rails without even needing to ask why he was fired. If they did trigger reprisal protection, then the only question is "Why was he fired?" In other words, it is a question of motive for the employer.
With that in mind, and with the utmost respect to the HRTO, I would argue that it is highly problematic to argue that whether or not the employer approached the complaints themselves reasonably and in good faith is immaterial to its motive for terminating Mr. Fawzy. If one supposes that Mr. Fawzy's theory of the case is right, that the employer was highly motivated by a personal relationship with the alleged harasser, and therefore wanted to sweep the matter under the rug, the employer's interactions with the alleged harasser are very relevant, as is the investigation report and the employer's response to the report. On the other hand, if Mr. Fawzy is wrong, and the harassment allegations were unsubstantiated, it is much harder for him to point to some motive for the employer's alleged "shoot the messenger" response.
In other words, the Tribunal's preliminary decision here seems to presuppose that the substantive harassment allegations had nothing to do with the decision to terminate Mr. Fawzy, when that appears to be precisely what is being alleged by Mr. Fawzy.
There's also a question of process. It's not entirely clear whether or not Fawzy had an opportunity to make submissions in support of consolidation (if Fawzy supported consolidation, which is also unclear). The Tribunal proposed to consolidate, and upon receipt of the employer's submissions to the contrary, determined that consolidation is inappropriate, without querying whether or not Fawzy wanted to make submissions in support of consolidation. Does Fawzy retain the right to bring a new request for consolidation if he so desires? Probably not - the Tribunal determined the matter as between the parties. Yet to have made a binding determination of the matter without having given Fawzy an opportunity to make submissions would violate the principles of natural justice.
*****
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 Human Rights. Show all posts
Showing posts with label Human Rights. Show all posts
Wednesday, August 29, 2012
Tuesday, August 14, 2012
Between a Rock and a Hard Place
There's an interesting recent case from the Superior Court, Barton v. Rona Ontario Inc., involving a dismissed manager who was fired for just cause after compromising safety in favour of human rights.
The Facts
Barton was an assistant store manager at Rona's Barrie location, responsible for managing 140 employees.
In April 2009, a training program was scheduled in the store's training centre, and one of the employees, Kai Malmstrom, wanted to take the course. Management wanted him to take the course, too. The one problem was...well, physics. Malmstrom was confined to a wheelchair, and the training centre was on the upper level of the store, and not wheelchair accessible. The official plan was that, after the training session on April 17th, one of the attendees to the training session would provide training to Malmstrom on the ground floor.
Malmstrom wasn't happy with this. He wanted to join his colleagues on the second floor, and take the training directly.
So Malmstrom and his colleague Mr. Stirk, came up with a plan to get Malmstrom upstairs using an order picker. The essentials of the plan involved strapping Malmstrom's wheelchair to a skid and lifting him up to the second floor, and bringing him back down the same way. On the evening before the training session, Malmstrom suggested this plan to Barton. Barton, at the time, was in the middle of coordinating a major event in the store, and while he did not expressly permit the plan, he failed to expressly prohibit them from carrying out their plan before he was called away. The evidence on the conversation was conflicting - the trial judge accepted that Barton reminded Malmstrom of the plan to have him trained later, but also accepted Malmstrom's evidence that Barton seemed agreeable to the plan, despite Barton's evidence that he tried to express his discomfort with the idea.
The next morning, as they began to carry out their plan, the Operations Manager, Clint Marsh, asked them what they were doing, and his evidence was that he prohibited them from doing so. Then he was called away, and they continued nonetheless.
The plan proceeded essentially without incident, except that Stirk wasn't wearing the appropriate safety equipment when bringing Malmstrom back down. Nobody was injured. Nonetheless, it was an egregious safety violation.
Gierak, a Human Resources Advisor, conducted an internal investigation into the incident, and there were significant excerpts from her notes reproduced in the decision. Both Marsh and Barton acknowledged they would have done things differently if given another chance - i.e. they would have stopped it (which is strange to me, given Marsh's evidence that he instructed them not to proceed). They also noted that, had they not been confident that it would proceed safely, they would have stopped it.
It appears that, given Malmstrom's impression that Barton was okay with the plan, he left Stirk with the impression that Barton had given permission, who conveyed that same impression to Marsh.
Gierak's report did not recommend termination. Up until her discovery that Stirk had foregone the appropriate safety equipment herself, she wasn't sure that there even was a safety violation, and felt that everyone's actions to get Malmstrom to the training session were, while perhaps ill-advised, understandable.
Nonetheless, following a second investigation by a second HR professional, management terminated Stirk and Barton for cause, and disciplined Marsh. There is no indication in the decision as to whether or not Malmstrom was disciplined, nor any of the others involved. (Apparently, several people assisted in the process of getting Malmstrom upstairs.)
The Decision
The question in this case was whether or not Barton's failure to stop the lift constituted just cause for termination.
Rona has very clear policies regarding safety protocols, including that immediate dismissal may be called for in specific cases of safety breaches, including deliberate acts that could endanger safety, riding on moving equipment, and deliberate violation of safety rules.
Furthermore, the Court accepted the proposition that managers are held to a higher standard than non-managerial employees.
The judge is not at all critical of Rona's decision to terminate Barton. There were many 'good and valid' business reasons to terminate an employee in that context. "In this case, for example, Rona might have formed the view that Mr. Barton lacked the character required of a senior management person and did not want him back. Rona could have decided that, given the large number of store staff who witnessed the event and assisted in the lift and the descent, it was necessary to make an example of him...."
However, these reasons do not necessarily "pass muster as just cause". The Court rightly notes that its assessment is simply whether or not the misconduct in and of itself justifies termination. In this case, there is no reason to suggest that discipline would have been inadequate to preserve the relationship as between Rona and Barton. No reason to think that a stern warning would have been insufficient to prevent Barton from engaging in such misconduct again. His specific acts were not so egregious as to warrant termination, and progressive discipline would have been appropriate.
My Thoughts
This is a close case in some ways, but I believe the Court got it exactly right. All Barton did was fail to prohibit a plan brought to his attention in a brief conversation during which he was otherwise occupied, and which was carried out the next morning before he arrived at work.
He probably should have said "Don't do it", and it's probably culpable misconduct that, as a manager, he failed to do so. But just cause is a high threshold. And it's interesting that Rona rolled the dice on this one, because it just so happens that the lawyer who represented Rona was one of the instructors for my law school employment law class, back in the day, where I was taught how high a threshold just cause is. (I recall one of the instructors relating an anecdote from Court where a judge queried whether or not just cause still exists at all.)
One of the things which really surprises me about this decision, though, is how little discourse there was on the human rights aspects of the case. The parties were clearly aware that the incident was simply an effort to get Malmstrom access to the training facility, and Barton himself was of the view that some blame lay with the lack of accessibility in the store.
It's hard to fault Malmstrom for wanting to attend the seminar in person. Getting instruction from somebody who happened to attend the seminar is hardly a substitute for having gotten professional instruction in a structured classroom. It seems like a discriminatory result.
Suppose, for a moment, that the lift could have been and was completed in a way that reasonably controlled for all risks involved. (Even though not all safety protocols were observed during the descent, that's hardly Barton's fault: He wasn't even there at the time, and even had he given express permission one would reasonably infer that it was subject to ordinary safety protocols being observed.) A Rona safety policy saying "Don't do it" might not be sufficient to justify rejecting the plan; you would have to carefully and contextually examine the risks, figure out why the particular policy is in place and whether or not the risks it seeks to avoid can otherwise be accounted for. We don't know what Rona's human rights policy says, but there's a good chance that it is also disciplinable for managers to engage in discrimination.
And also suppose that Barton hasn't memorized all such policies. This is a fair supposition, I think. Given an opportunity to review the safety policies and the human rights policies, and the specifics of the request being made, there may have been a right answer and a wrong answer within the context of Rona policy, but in the absence of such an opportunity to review, we're looking at two answers which could be wrong. This is not a scenario where you can necessarily err on the side of caution, because there is no cautious approach.
Barton doesn't want to refuse the request, because he sees it as his responsibility (and Rona's responsibility) to accommodate Malmstrom. He may be wrong. It may be that the plan was inherently unsafe in such a way as to justify refusal, and it may also be that creating an access route or a ground floor training facility would amount to 'undue hardship', which would mean that Malmstrom would have no legal right to be so accommodated. But this is a complex and nuanced human rights question, which lawyers could certainly and reasonably disagree about.
At minimum, this mitigates the severity of his failure to instruct Malmstrom not to carry out the plan. We know that he was busy with other matters, he wasn't able to complete the conversation, and he didn't have an opportunity to return to the matter to finish dealing with it. That he could reasonably and in good faith believe that his decision was to protect Malmstrom's human rights makes it difficult to argue that the decision, even if wrong, could be such misconduct as to warrant summary dismissal for cause.
But it's more than that: Refusing to discriminate against somebody is a protected act under the Human Rights Code. The law on this point is not particularly well-settled either - it is reasonably clear that a good faith complaint of discrimination will give rise to reprisal protection, even if the original complaint was not founded. Imagine, for example, that I was denied a promotion, and I felt in good faith and reasonably that the denial was due to my religion, and I made a complaint accordingly, and was fired for it. Even if I cannot prove the actual discrimination (and indeed, even if the denial of the promotion could be shown to not be discriminatory at all), the termination would still likely be an unlawful reprisal. It is not so clear that the same principle applies to people refusing to breach another's Code rights, but it's arguable. So if refusing to allow Malmstrom to attend the seminar would be unlawful discrimination (which could be argued), then not prohibiting him from doing so would likely be Code-protected. Alternatively, even if it wasn't unlawful discrimination, the failure to prohibit him from doing so based on the good faith belief that Malmstrom was entitled to accommodation might still be Code-protected.
Highlights
I'm pretty sympathetic to Barton, but that sympathy arises from several places, and I wouldn't want to be taken as suggesting any sort of general proposition that safety ought to be compromised in favour of human rights.
Firstly, he wasn't there. He discussed the matter the night before in what sounds like a fairly cursory manner, and didn't prohibit it. That amounts to, at best, lukewarm complicity.
Secondly, not being there, he can hardly be faulted for the fact that not all safety precautions were taken. He was dealing with people well-qualified and trained in the use of the equipment, and ought reasonably to have presumed that these folks would take all safety precautions.
Thirdly, nobody was injured. Had there been injuries, that could be a whole different matter.
Fourthly, it was Malmstrom's idea in the first place. Inherently unsafe, perhaps, but most of the risk was to Malmstrom, and he would have been aware of such risks. (If it was the employer's idea, pressuring Malmstrom to engage in something unsafe as an alternative to reasonable accommodation, it could be a very serious problem under both the Human Rights Code and the Occupational Health & Safety Act.)
Fifthly, it was necessitated by an unfortunate absence of accessibility, which means that the employer probably has to shoulder at least some of the blame, and can't just point fingers at Barton.
In general, I'm inclined to believe that Barton was probably wrong, but not even at the longest stretch could I imagine this constituting just cause.
*****
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 Facts
Barton was an assistant store manager at Rona's Barrie location, responsible for managing 140 employees.
In April 2009, a training program was scheduled in the store's training centre, and one of the employees, Kai Malmstrom, wanted to take the course. Management wanted him to take the course, too. The one problem was...well, physics. Malmstrom was confined to a wheelchair, and the training centre was on the upper level of the store, and not wheelchair accessible. The official plan was that, after the training session on April 17th, one of the attendees to the training session would provide training to Malmstrom on the ground floor.
Malmstrom wasn't happy with this. He wanted to join his colleagues on the second floor, and take the training directly.
So Malmstrom and his colleague Mr. Stirk, came up with a plan to get Malmstrom upstairs using an order picker. The essentials of the plan involved strapping Malmstrom's wheelchair to a skid and lifting him up to the second floor, and bringing him back down the same way. On the evening before the training session, Malmstrom suggested this plan to Barton. Barton, at the time, was in the middle of coordinating a major event in the store, and while he did not expressly permit the plan, he failed to expressly prohibit them from carrying out their plan before he was called away. The evidence on the conversation was conflicting - the trial judge accepted that Barton reminded Malmstrom of the plan to have him trained later, but also accepted Malmstrom's evidence that Barton seemed agreeable to the plan, despite Barton's evidence that he tried to express his discomfort with the idea.
The next morning, as they began to carry out their plan, the Operations Manager, Clint Marsh, asked them what they were doing, and his evidence was that he prohibited them from doing so. Then he was called away, and they continued nonetheless.
The plan proceeded essentially without incident, except that Stirk wasn't wearing the appropriate safety equipment when bringing Malmstrom back down. Nobody was injured. Nonetheless, it was an egregious safety violation.
Gierak, a Human Resources Advisor, conducted an internal investigation into the incident, and there were significant excerpts from her notes reproduced in the decision. Both Marsh and Barton acknowledged they would have done things differently if given another chance - i.e. they would have stopped it (which is strange to me, given Marsh's evidence that he instructed them not to proceed). They also noted that, had they not been confident that it would proceed safely, they would have stopped it.
It appears that, given Malmstrom's impression that Barton was okay with the plan, he left Stirk with the impression that Barton had given permission, who conveyed that same impression to Marsh.
Gierak's report did not recommend termination. Up until her discovery that Stirk had foregone the appropriate safety equipment herself, she wasn't sure that there even was a safety violation, and felt that everyone's actions to get Malmstrom to the training session were, while perhaps ill-advised, understandable.
Nonetheless, following a second investigation by a second HR professional, management terminated Stirk and Barton for cause, and disciplined Marsh. There is no indication in the decision as to whether or not Malmstrom was disciplined, nor any of the others involved. (Apparently, several people assisted in the process of getting Malmstrom upstairs.)
The Decision
The question in this case was whether or not Barton's failure to stop the lift constituted just cause for termination.
Rona has very clear policies regarding safety protocols, including that immediate dismissal may be called for in specific cases of safety breaches, including deliberate acts that could endanger safety, riding on moving equipment, and deliberate violation of safety rules.
Furthermore, the Court accepted the proposition that managers are held to a higher standard than non-managerial employees.
The judge is not at all critical of Rona's decision to terminate Barton. There were many 'good and valid' business reasons to terminate an employee in that context. "In this case, for example, Rona might have formed the view that Mr. Barton lacked the character required of a senior management person and did not want him back. Rona could have decided that, given the large number of store staff who witnessed the event and assisted in the lift and the descent, it was necessary to make an example of him...."
However, these reasons do not necessarily "pass muster as just cause". The Court rightly notes that its assessment is simply whether or not the misconduct in and of itself justifies termination. In this case, there is no reason to suggest that discipline would have been inadequate to preserve the relationship as between Rona and Barton. No reason to think that a stern warning would have been insufficient to prevent Barton from engaging in such misconduct again. His specific acts were not so egregious as to warrant termination, and progressive discipline would have been appropriate.
My Thoughts
This is a close case in some ways, but I believe the Court got it exactly right. All Barton did was fail to prohibit a plan brought to his attention in a brief conversation during which he was otherwise occupied, and which was carried out the next morning before he arrived at work.
He probably should have said "Don't do it", and it's probably culpable misconduct that, as a manager, he failed to do so. But just cause is a high threshold. And it's interesting that Rona rolled the dice on this one, because it just so happens that the lawyer who represented Rona was one of the instructors for my law school employment law class, back in the day, where I was taught how high a threshold just cause is. (I recall one of the instructors relating an anecdote from Court where a judge queried whether or not just cause still exists at all.)
One of the things which really surprises me about this decision, though, is how little discourse there was on the human rights aspects of the case. The parties were clearly aware that the incident was simply an effort to get Malmstrom access to the training facility, and Barton himself was of the view that some blame lay with the lack of accessibility in the store.
It's hard to fault Malmstrom for wanting to attend the seminar in person. Getting instruction from somebody who happened to attend the seminar is hardly a substitute for having gotten professional instruction in a structured classroom. It seems like a discriminatory result.
Suppose, for a moment, that the lift could have been and was completed in a way that reasonably controlled for all risks involved. (Even though not all safety protocols were observed during the descent, that's hardly Barton's fault: He wasn't even there at the time, and even had he given express permission one would reasonably infer that it was subject to ordinary safety protocols being observed.) A Rona safety policy saying "Don't do it" might not be sufficient to justify rejecting the plan; you would have to carefully and contextually examine the risks, figure out why the particular policy is in place and whether or not the risks it seeks to avoid can otherwise be accounted for. We don't know what Rona's human rights policy says, but there's a good chance that it is also disciplinable for managers to engage in discrimination.
And also suppose that Barton hasn't memorized all such policies. This is a fair supposition, I think. Given an opportunity to review the safety policies and the human rights policies, and the specifics of the request being made, there may have been a right answer and a wrong answer within the context of Rona policy, but in the absence of such an opportunity to review, we're looking at two answers which could be wrong. This is not a scenario where you can necessarily err on the side of caution, because there is no cautious approach.
Barton doesn't want to refuse the request, because he sees it as his responsibility (and Rona's responsibility) to accommodate Malmstrom. He may be wrong. It may be that the plan was inherently unsafe in such a way as to justify refusal, and it may also be that creating an access route or a ground floor training facility would amount to 'undue hardship', which would mean that Malmstrom would have no legal right to be so accommodated. But this is a complex and nuanced human rights question, which lawyers could certainly and reasonably disagree about.
At minimum, this mitigates the severity of his failure to instruct Malmstrom not to carry out the plan. We know that he was busy with other matters, he wasn't able to complete the conversation, and he didn't have an opportunity to return to the matter to finish dealing with it. That he could reasonably and in good faith believe that his decision was to protect Malmstrom's human rights makes it difficult to argue that the decision, even if wrong, could be such misconduct as to warrant summary dismissal for cause.
But it's more than that: Refusing to discriminate against somebody is a protected act under the Human Rights Code. The law on this point is not particularly well-settled either - it is reasonably clear that a good faith complaint of discrimination will give rise to reprisal protection, even if the original complaint was not founded. Imagine, for example, that I was denied a promotion, and I felt in good faith and reasonably that the denial was due to my religion, and I made a complaint accordingly, and was fired for it. Even if I cannot prove the actual discrimination (and indeed, even if the denial of the promotion could be shown to not be discriminatory at all), the termination would still likely be an unlawful reprisal. It is not so clear that the same principle applies to people refusing to breach another's Code rights, but it's arguable. So if refusing to allow Malmstrom to attend the seminar would be unlawful discrimination (which could be argued), then not prohibiting him from doing so would likely be Code-protected. Alternatively, even if it wasn't unlawful discrimination, the failure to prohibit him from doing so based on the good faith belief that Malmstrom was entitled to accommodation might still be Code-protected.
Highlights
I'm pretty sympathetic to Barton, but that sympathy arises from several places, and I wouldn't want to be taken as suggesting any sort of general proposition that safety ought to be compromised in favour of human rights.
Firstly, he wasn't there. He discussed the matter the night before in what sounds like a fairly cursory manner, and didn't prohibit it. That amounts to, at best, lukewarm complicity.
Secondly, not being there, he can hardly be faulted for the fact that not all safety precautions were taken. He was dealing with people well-qualified and trained in the use of the equipment, and ought reasonably to have presumed that these folks would take all safety precautions.
Thirdly, nobody was injured. Had there been injuries, that could be a whole different matter.
Fourthly, it was Malmstrom's idea in the first place. Inherently unsafe, perhaps, but most of the risk was to Malmstrom, and he would have been aware of such risks. (If it was the employer's idea, pressuring Malmstrom to engage in something unsafe as an alternative to reasonable accommodation, it could be a very serious problem under both the Human Rights Code and the Occupational Health & Safety Act.)
Fifthly, it was necessitated by an unfortunate absence of accessibility, which means that the employer probably has to shoulder at least some of the blame, and can't just point fingers at Barton.
In general, I'm inclined to believe that Barton was probably wrong, but not even at the longest stretch could I imagine this constituting just cause.
*****
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, May 23, 2012
Garrie v. Janus Joan
Here's another case that Professor Doorey posted about a few months ago, from the HRTO.
It's a very unsatisfying case. Terri-Lynn Garrie has a developmental disability, and worked for Janus Joan Inc. from the late 90's to October 2009. The employer didn't participate in the process, and the applicant was represented by her mother.
From the Tribunal's survey of the evidence, it appears that Janus Joan employed several general labourers. Some of the general labourers had developmental disabilities, and others did not, but they all performed essentially the same job. The ones without disabilities were paid at minimum wage or higher. The ones with disabilities were compensated only by way of an 'honorarium' - at first equivalent to $1 per hour, and eventually increased to the rate of $1.25 per hour. Garrie worked 40 hours per week.
Most likely, the employer thought it was doing these employees a favour by giving them something to keep them busy while paying them little enough as to not affect their ODSP benefits.
In October 2009, Janus Joan dismissed all of its employees with developmental disabilities. Garrie made an application to the HRTO claiming that the wage rate and the dismissal were both discriminatory on the basis of disability.
The Tribunal concluded that Garrie was out of time to complain about the discriminatory wage rate (i.e. the application should have been brought within one year of the implementation of the discriminatory wage rate), and therefore didn't consider that allegation. However, the dismissal was found to be discriminatory, and Garrie was awarded lost income benefits until she obtained replacement employment at Walmart in November 2010...but the damage award was at the rate of $50 per week, totaling $2,678.50. (She also received compensation for injury to feelings, dignity, and self-respect regarding the discriminatory dismissal.)
This is controversial. As Professor Doorey pointed out, awarding damages at a rate which blatantly disregards the minimum wage requirements of the Employment Standards Act seems deeply concerning.
I am of mixed minds on that point. It is likely true that, but for the unlawful dismissal, she would have continued working at $1.25 per hour without complaint, making $50 per week. Yet she would probably have been entitled to a remedy for that underpayment (i.e. from October 2009 to November 2010) through the employment standards complaint process, which was no longer available to her because of the dismissal.
But I am more concerned about the decision regarding timeliness. The Tribunal looks at the implementation of the discriminatory wage as being the act complained of, which continued to have effects into the future but which did not keep the limitation period running.
I could understand this analysis in context of, say, denial of a promotion - a single discriminatory event with echoes into the future. But wage discrimination is different, because there's a clear and contemporary comparison to be drawn. The Code right is to 'equal treatment'. Clearly, in 2009, Garrie was not being treated equally to her non-disabled co-workers. I would argue that the fact that she agreed to an unfair contract 10 years earlier cannot create an estoppel barring her from asserting her rights to fair treatment on an ongoing basis.
So yes, a very unsatisfying decisions.
But there's a new development as well. Apparently, Janus Joan Inc. is no longer in business, and now there's "Janus Joan (1996) Inc." instead.
One could see this coming in the original decision. The respondent had sent a letter to the Tribunal indicating that the corporate respondent was "closed" (there was an individual respondent as well, but she was not found liable). "The applicant's parents deny that the organizational respondent is closed, and state that the name has simply been changed from Janus Joan Inc. to Janus Joan Inc. with a number after the name." They also led photographic evidence that the business was still operating and that the personal respondent's car was in the parking lot.
At a glance, it appears that the same principals are behind the new corporation, carrying on the same business.
The Applicant has now sought the assistance of the Human Rights Legal Support Centre, wisely, and they brought a Request to add a party, which the Tribunal has denied: "the applicant seeks to make the proposed respondent liable on the basis of a hearing of which it had no notice and in which it had no opportunity to participate". Which is, most likely, sort of true.
It sounds like Janus Joan made a risky play here, deciding not to participate and sheltering behind a changed name. It isn't uncommon for a party to be incorrectly named at the HRTO, and usually it's clear enough who is being claimed against that the party will respond anyways and correct the name. Cases involving actual new corporations aren't as common, and have trickier considerations. Is the new corporation actually liable to the employee in a direct sense? Often not - in order to be a successor employer, you actually need to employ the individual in question. Consider the circumstance of an asset purchase, where ABC Inc. purchases all the assets of XYZ Inc. (per value), but doesn't hire an employee of XYZ. The employee's contract is with XYZ, and he has no relationship with ABC nor a right to be hired by ABC. (Assume, for the sake of the example, that ABC is not unionized.) In such a case, the employee probably cannot successfully sue ABC, but has to sue XYZ instead.
There can be ways of getting around the problem, but not always, and they can be tricky. It would be interesting to see Garrie's next move here, now that she is represented by competent counsel.
*****
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.
It's a very unsatisfying case. Terri-Lynn Garrie has a developmental disability, and worked for Janus Joan Inc. from the late 90's to October 2009. The employer didn't participate in the process, and the applicant was represented by her mother.
From the Tribunal's survey of the evidence, it appears that Janus Joan employed several general labourers. Some of the general labourers had developmental disabilities, and others did not, but they all performed essentially the same job. The ones without disabilities were paid at minimum wage or higher. The ones with disabilities were compensated only by way of an 'honorarium' - at first equivalent to $1 per hour, and eventually increased to the rate of $1.25 per hour. Garrie worked 40 hours per week.
Most likely, the employer thought it was doing these employees a favour by giving them something to keep them busy while paying them little enough as to not affect their ODSP benefits.
In October 2009, Janus Joan dismissed all of its employees with developmental disabilities. Garrie made an application to the HRTO claiming that the wage rate and the dismissal were both discriminatory on the basis of disability.
The Tribunal concluded that Garrie was out of time to complain about the discriminatory wage rate (i.e. the application should have been brought within one year of the implementation of the discriminatory wage rate), and therefore didn't consider that allegation. However, the dismissal was found to be discriminatory, and Garrie was awarded lost income benefits until she obtained replacement employment at Walmart in November 2010...but the damage award was at the rate of $50 per week, totaling $2,678.50. (She also received compensation for injury to feelings, dignity, and self-respect regarding the discriminatory dismissal.)
This is controversial. As Professor Doorey pointed out, awarding damages at a rate which blatantly disregards the minimum wage requirements of the Employment Standards Act seems deeply concerning.
I am of mixed minds on that point. It is likely true that, but for the unlawful dismissal, she would have continued working at $1.25 per hour without complaint, making $50 per week. Yet she would probably have been entitled to a remedy for that underpayment (i.e. from October 2009 to November 2010) through the employment standards complaint process, which was no longer available to her because of the dismissal.
But I am more concerned about the decision regarding timeliness. The Tribunal looks at the implementation of the discriminatory wage as being the act complained of, which continued to have effects into the future but which did not keep the limitation period running.
I could understand this analysis in context of, say, denial of a promotion - a single discriminatory event with echoes into the future. But wage discrimination is different, because there's a clear and contemporary comparison to be drawn. The Code right is to 'equal treatment'. Clearly, in 2009, Garrie was not being treated equally to her non-disabled co-workers. I would argue that the fact that she agreed to an unfair contract 10 years earlier cannot create an estoppel barring her from asserting her rights to fair treatment on an ongoing basis.
So yes, a very unsatisfying decisions.
But there's a new development as well. Apparently, Janus Joan Inc. is no longer in business, and now there's "Janus Joan (1996) Inc." instead.
One could see this coming in the original decision. The respondent had sent a letter to the Tribunal indicating that the corporate respondent was "closed" (there was an individual respondent as well, but she was not found liable). "The applicant's parents deny that the organizational respondent is closed, and state that the name has simply been changed from Janus Joan Inc. to Janus Joan Inc. with a number after the name." They also led photographic evidence that the business was still operating and that the personal respondent's car was in the parking lot.
At a glance, it appears that the same principals are behind the new corporation, carrying on the same business.
The Applicant has now sought the assistance of the Human Rights Legal Support Centre, wisely, and they brought a Request to add a party, which the Tribunal has denied: "the applicant seeks to make the proposed respondent liable on the basis of a hearing of which it had no notice and in which it had no opportunity to participate". Which is, most likely, sort of true.
It sounds like Janus Joan made a risky play here, deciding not to participate and sheltering behind a changed name. It isn't uncommon for a party to be incorrectly named at the HRTO, and usually it's clear enough who is being claimed against that the party will respond anyways and correct the name. Cases involving actual new corporations aren't as common, and have trickier considerations. Is the new corporation actually liable to the employee in a direct sense? Often not - in order to be a successor employer, you actually need to employ the individual in question. Consider the circumstance of an asset purchase, where ABC Inc. purchases all the assets of XYZ Inc. (per value), but doesn't hire an employee of XYZ. The employee's contract is with XYZ, and he has no relationship with ABC nor a right to be hired by ABC. (Assume, for the sake of the example, that ABC is not unionized.) In such a case, the employee probably cannot successfully sue ABC, but has to sue XYZ instead.
There can be ways of getting around the problem, but not always, and they can be tricky. It would be interesting to see Garrie's next move here, now that she is represented by competent counsel.
*****
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, March 16, 2012
Court of Appeal Rules on Shaw v. Phipps
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.
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.
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.
Friday, February 17, 2012
Back to Basics: What is discrimination?
In the literal sense, discrimination refers to any unfavourable treatment directed at a particular person or group but not at others. Imagine, for example, that I own a store, and I post a sign saying that I will refuse service to anyone wearing American Eagle. That is clearly a discriminatory policy - I'm discriminating against people based on their choice of fashion and attire.
But is that illegal? Almost certainly not.
It's common to think of the Human Rights Code as prohibiting 'discrimination', simpliciter. It doesn't.
It's common to think of the Human Rights Tribunal as a forum for addressing all manner of hurt feelings and unfair treatment. It isn't.
The Human Rights Code prohibits discrimination and harassment based on certain grounds in certain contexts. It is not a forum for addressing general claims of unfairness.
Social Areas of Prohibited Discrimination and Harassment
Let's start by looking at the contexts affected by the Human Rights Code, or what are referred to as "social areas". There are a few of them: Employment; Provision of Services, Goods and Facilities; Accommodation (i.e. residence); Contracts; and Vocational Associations.
Most commercial dealings will be covered by the Code, but outside of commercial relationships the Code has limited application. So if I refuse to socialize, generally speaking, with anyone outside of my racial or religious group, that may well be discriminatory on the basis of what would be considered a prohibited ground, but it's not usually going to be illegal. (However, inside a workplace, such exclusionary conduct could be a breach of the Code.) Consider romantic relationships generally. Most people require that their romantic partners be of a specific gender and age range, and it is very common for religion, race, colour, and place of origin to play a major factor in the selection of romantic partners. None of this is unlawful, because it doesn't fall within one of the applicable social areas.
Likewise, if I'm walking down the street and shout a racial epithet at a random member of the public, that may be highly inappropriate, but it probably isn't a violation of the Human Rights Code.
The three common ones are employment, services, and accommodation. In employment, I'm entitled to not be discriminated against on the basis of certain prohibited grounds. So an employer can't refuse to hire because of race, can't assign specific menial duties based on religion, can't fire somebody because of a disability, etc. Moreover, there's also a measure of protection from one's co-workers: If I'm being harassed by co-workers on the basis of a prohibited ground, then I may have a remedy against that co-worker, and also against my employer if my employer fails to take reasonable steps to protect me.
In terms of services, it's easiest to think of retail environments. Refusing to serve somebody because of their race is illegal. So too, in most contexts, is refusing to serve a disabled person with a service animal. But services are really much broader than that. Even policing has been seen as falling within this social area.
Accommodation is much narrower, referring specifically to residential tenancies. It's also more nuanced: A woman living alone and looking to rent out her extra room is not necessarily going to be bound to afford equal opportunities to prospective male tenants.
Prohibited Grounds
Surprisingly enough, the list of prohibited grounds is lengthy, and not uniform across different social areas.
In general, we're talking about grounds such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, and disability. In accommodation, there's also a prohibition on discrimination on the basis of receipt of social assistance - in other words, you can't refuse to rent to somebody just because they're on Ontario Works.
These are pretty broad. In general, we're looking at characteristics that are either beyond the control of the individual, or which are relatively immutable values/lifestyle choices. (Marital and family status, for example, isn't exactly outside of an individual's control, but it isn't something you can turn on or off. Same with citizenship, and religion. These are things which can be changed, but we don't and shouldn't expect somebody to change them to conform with some sort of commercial expectation.)
They don't generally protect people from discrimination on the basis of more flexible decisions - fashion, hairstyle, etc (except to the extent that these may be proxies for prohibited grounds) - and moreover, aside from the protection of social assistance recipients for accommodations, there is no provision for economic rights in the Human Rights Code.
Business owners don't always grasp that distinction. I once had a very successful businessperson argue that the requirement to accommodate disabilities is a violation of his human rights, as an often-arbitrary measure which impairs his ability to do business (he pointed out that he has had to install wheelchair-accessible washrooms in all his various businesses over the years, and not once has anyone with a wheelchair ever required them...which perhaps is unsurprising, given that his current venture at least is an athletic facility specializing in activities with relatively limited para-athletic interest); I had to explain to him that his view of "human rights" was not consistent with Ontario law. Similarly, I have had employer clients asking "But what about our rights" when I explain their obligation to accommodate up to the point of undue hardship.
The Human Rights Code is not completely oblivious to the viability of a business. There is the "undue hardship" qualifier on the obligation to accommodate. But the Code, all in all, isn't designed to protect economic rights. Nor does the Canadian Charter of Rights and Freedoms offer protection of economic rights at all. (The United States Declaration of Independence spoke of "life, liberty, and the pursuit of happiness", but their XIV Amendment protects life, liberty, and property; by contrast, s.7 of the Canadian Charter of Rights and Freedoms guarantees the right to "life, liberty, and security of the person".)
Exceptions
These rights aren't absolute. There are exceptions and limitations. For example, the right to equal treatment in employment on the basis of disability can be denied where the employer cannot reasonably accommodate without undue hardship. There are categories of exemptions, such as religious or philanthropic organizations whose mandates include service of particular groups identified by prohibited grounds. There are certain provisions allowing preferential treatment in some circumstances - for example, preferential treatment of those over 65 is permissible. Age discrimination protection usually doesn't extend to people under 18 in the first place, except in narrowly-defined circumstances.
Age discrimination is actually an interesting phenomenon. A senior's discount is permissible as preferential treatment for those over 65, but service providers who set the senior's threshold elsewhere - i.e. age 60 - may be violating the Code. Alternatively, because there are certain legal thresholds for tobacco and alcohol above age 18, service providers sometimes feel that they're erring on the side of caution by broadening the scope of services they won't offer to those under 19...but unless they're actually legally prohibited from offering such services (for example, sale of tobacco products), that would be unlawful discrimination.
Once, when I was in law school, I was in an "As Seen On TV"-type store with a number of friends, one of whom was 18 years old at the time. There was exercise equipment there, and a sign saying that children "18 and under" were not permitted to use it. That sign would be lawful if it said "under 18", but when it extended the prohibition to 18-year-olds, it probably crossed the line into illegality. I joked with my 18-year-old friend that she should make a human rights complaint.
At the same time, the same level of scrutiny isn't necessarily applied to age discrimination as other prohibited grounds, because it is the one prohibited ground in which nearly all of us will experience or have experienced each and every state. All adults were 18 years old at one point, and all of us expect that someday we will be older than 65. Thus, mandatory retirement provisions are given a bit more flexibility, perhaps, because of the fact that they still ostensibly apply to everyone, and arguably aren't actually discriminatory in the most literal sense.
*****
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 7, 2012
The Right to Strike
The lines are drawn for the next great battle of contemporary labour law.
For all of the issues that have arisen in recent labour disputes in Ontario and in the Federal sphere, including the Province designating the TTC as an essential service and the Feds legislatively interfering labour disputes involving Air Canada and Canada Post, this case has arisen in Saskatchewan, and has provided - at the trial level - an answer to a question whose spectre was raised 11 years ago by the Supreme Court in the Dunmore decision: Does s.2(d) of the Charter of Rights and Freedoms guarantee a right to strike?
The History
In the early Charter jurisprudence, the Supreme Court pretty thoroughly rejected the notion that s.2(d) (freedom of association) protected union-related rights. However, in Dunmore the Supreme Court overturned those earlier cases, accepting that the freedom of association included the freedom to join unions.
Dunmore was important for a few reasons. It also has become a precedent for the Charter requiring what is characterized as 'positive government action'. Traditionally, Charter rights only restricted what a government could do. Freedom of expression prevents someone from being silenced, but does not require anyone to provide a soapbox. It means that the government can't force my blog to be shut down (without good reasons), but doesn't require the government to provide hosting for my blog, or to force Blogger to continue to host it.
So how does that apply to a right to join a trade union? Under a traditional Charter analysis, it would mean that the government can't make it illegal for a group to join a union. Early in the labour movement, but in days long past, this was the case. But with most groups these days have statutory rights to join unions, the question took on different dimensions: Dunmore was about the exclusion of agricultural workers from the labour relations regime, about saying to society at large, "Everyone can join unions...except these guys." The Court in Dunmore concluded that this had a chilling effect, that the exclusion of one group in itself sent a message to employers that agricultural unionization efforts would be illegitimate, and by doing so the government was interfering with such unionization efforts. In response, the legislature enacted a law, the AEPA, giving agricultural workers the right to join unions and make representations to employers. We'll come back to that in a minute.
The next question was what was included with this right to join a union. Can the employer proceed to ignore the union anyways, in the absence of a statutory regime telling them otherwise? Does s.2(d) include not just a right to join a union, but also a right to collective bargaining? And if so, does that impose a positive obligation on government to protect such a right?
The second case was B.C. Health Services in 2007, and the answer to the question was Yes. The British Columbia government had legislatively overridden several public sector collective agreements, and the Supreme Court found that this interfered with the associational rights of the individuals involved - a meaningful right to associate means protection of the objectives for which people associate, including collective bargaining. The case reinforced Dunmore and referenced the discussion from that case of 'underinclusive legislation'. I've tended to argue that the discussion of positive government action in B.C. Health Services is somewhat misplaced, since we are talking about a case involving the government actually legislatively undermining collective agreements, but I (though I'm probably alone in this) really don't read Health Services as meaningfully expanding the "positive obligations" scope from the extremely limited doctrine set forth in Dunmore.
Then, there was the third case, Fraser, dealing with the AEPA in Ontario. The objection was that the AEPA didn't obligate employers to actually negotiate in good faith when receiving representations from the union. The Supreme Court's response, in a remarkable feat of legislative interpretation (see my commentary here), was "Yes it does", finding that good faith obligations could be read into the statute, and that s.2(d) may guarantee a meaningful right of collective bargaining but does not guarantee any particular mode or structure for that collective bargaining.
I am somewhat disturbed by how far Fraser comes from Dunmore's 'the government can't substantially interfere with the right to organize' to 'the government is obligated to enact statutes imposing good faith obligations on employers'. But that's not for today.
What Now?
Yesterday, the Saskatchewan Court of Queen's Bench released a decision finding that s.2(d) constitutionally guarantees the right to strike. The facts involve a statute enacted which essentially imposes a wide-spread 'essential service' model, stripping public sector employees of the right to strike.
The Court noted the role of the strike in labour relations. In the private sector, a strike imposes economic pressure on both sides - the employees aren't making money, but the employer isn't getting labour. In the public sector, the pressure on the employer is different, usually being political in nature.
It's a lengthy decision, but I will deal with it in very brief terms for now, at the risk of oversimplifying: The Court views the strike as being a keystone of collective action - without the right to strike, to exert collective pressure against the employer, the right to collectively bargain is meaningless. Thus, s.2(d) must extend to the right to strike.
Further, Canada's international obligations and participation in ILO conventions tend toward the recognition of a right to strike.
My Thoughts
I'm not an expert in international law. There are people far smarter than me who have argued either way on this point in the wake of B.C. Health Services, but I dislike the invocation of international law in this context. It is difficult to accept that an international treaty, which governments can enter into or rescind, can inform the interpretation of the Canadian constitution.
In any event, even if my distaste for the Supreme Court's approach in Health Services is unsubstantiated, the Court in this case takes it further. You see, the right to strike is not expressly set out in the applicable ILO convention, but rather has been read in by the ILO over time. Namely, in 1971, the ILO appointed a Committee to inquire into a complaint against Greece, which concluded that the right to strike was implicitly protected by convention 87. The Saskatchewan Court here pointed out that Canada ratified the treaty in 1972, after that decision made it clear that the Committee on Freedom of Association was taking that position, and therefore it informs the contents of our international obligations, which in turn (following B.C. Health Services) inform the content of our Charter rights.
Okay, let's parse this for a second: We have freedom of association. Because, in 1972, we ratified a convention agreeing to protect collective bargaining, that gets lumped in with freedom of association. And because, in 1971, an international organization concluded that the right to strike was implicitly protected by a right to collectively bargain, that means our constitution must therefore guarantee a right to strike. Even if I were to put aside the heavy deference on an international organization's interpretation which was not at all informed by Canadian legal principles, this is starting to get a little disturbing for other reasons, but I'll get to that in a second.
The Court also refers to the presumption of conformity with international law, which is a principle of statutory interpretation suggesting that, in the absence of an irresistably clear intention not to comply with international obligations, a law should be read as being consistent with international obligations.
This is true. I'm quite fond of that principle, actually. I like international cooperation and multi-lateralism, and I'm fond of the fact that a government is unable to subtly legislate around its international obligations - it can do so, and should be able to do so, but has to admit openly that that's what it is doing.
But it's a rebuttable presumption, premised on the notion that "If the government really wanted to ignore its international obligations, it could have said so expressly." Moreover, if that's really what the government wanted to do, they can just go and amend the law to do so. When we're talking about Charter interpretation, that notion no longer exists. The Charter is there. It has been there since 1982, and it's nigh-impossible to amend. If we were talking about international obligations that post-date the Charter, I'd be deeply worried about the Court saying "Well, if they didn't want us to interpret the Charter to include this international obligation, they should have put that in the fine print of the Charter." Such a conclusion would be absurd.
In this case, of course, the international obligations predate the Charter, but if that's the deciding factor then that worries me for different reasons: Unlike that of our southern neighbours, the Canadian constitution is a "living tree". It grows and changes as the society it protects grows and changes. The intended meaning upon drafting isn't completely irrelevant, but nor is it determinative. American constitutional interpretation today is rather muddied by the fact that they feel beholden to the ideals, values, and intentions of those who drafted the document, well over two centuries ago. Two hundred years from now, when our society (and economy and workforce) has grown and evolved in ways that we can't necessarily imagine now, are we going to have to interpret our ongoing constitutional rights and obligations based on what a group of non-Canadians said about a conflict in Greece in 1971?
The answer, almost certainly, is No. That would be anathema to the entire history of Canadian constitutional jurisprudence. We leave it to our Courts to interpret and determine the contents of the Charter, and we trust them to consider these questions in meaningful and thoughtful ways. They cannot defer on questions of constitutional interpretation, and even if you grant that Canada's role in the international community may have some interpretive value, it simply cannot be the case that the Courts' hands can or will be tied in context of constitutional interpretation by the conclusions of an international organization. Canada can decide for itself whether or not meaningful freedom of association requires a right to strike. If our Courts find that it does not, that will not abrogate from the government's international obligations to recognize a right to strike anyways...but that's kind of my whole point: It is an *international* obligation, one that we have taken on and which is subject to our own sovereign statehood. That alone ought not to make it a constitutional obligation.
Furthermore, I'm not certain that I agree with the conclusion that a strike is necessary for meaningful collective bargaining. There are alternative models, including interest arbitration, for resolving irreconcilable disputes in bargaining.
There are problems with such arbitration, of course. Firstly, defining the mandate of the arbitrator can be difficult, directing them in what factors they should consider in coming to a decision. Secondly, widespread arbitration can result in a disconnect from free market pressures and bargaining power, resulting in wages which are either inordinately high or low with regard to market conditions, because arbitrated results tend to focus strongly on "What are other people getting?". (That being said, negotiated results often have that dimension, too.) Arbitration also tends to resist innovation - an arbitrator doesn't want to adjudicate something new between the parties that doesn't exist elsewhere.
Yet I'm not sure that any of these problems are such that they can be said to interfere with meaningful association by definition. While a statute that puts economic concerns of the employer at the forefront of an arbitrator's mandate would likely do so, a balanced formulation of the mandate is not impossible. As for the prospect of a break from market conditions, this could be built into the mandate to some extent. Not a perfect solution, but it's hard to imagine wages skyrocketing out of control, or unionized employees suddenly becoming drastically underpaid. And the issue of stagnation is troubling, but nor is it one-sided. If a party wants something new and different, they can still bargain for it, and bargaining may require compromise, on both sides. A no-strike model would likely have prevented Ford from bullying CUPE into compromising its job security provisions.
In light of Fraser, noting that no specific labour relations model is necessary, I think that the existence of no-strike alternative models which have been effectively used in some contexts will make it difficult for this decision to survive its appeals.
What next?
This will be appealed, likely all the way to the Supreme Court in time. If it holds up, the consequences will be widespread. Many of the current Federal government's actions will be seen as ultra vires (outside of their power), interfering with collective bargaining processes. Back-to-work legislation in general will become presumptively unconstitutional, unless it can be justified under section 1 of the Charter. Essential services legislation will be the same - most likely, the TTC's essential services designation will be done away with.
I don't like the approach taken by the Federal government to labour issues. I do think that, where the government is going to step in, a fair alternative is necessary, and that has not been happening. But, with fair alternatives available, I dislike the notion of an outright prohibition of government interference in labour disputes. Labour disruptions can and often do have major impacts on the public interest, and I'm not laissez-faire enough to say that we should always just leave it to market pressures to decide who's right.
*****
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.
For all of the issues that have arisen in recent labour disputes in Ontario and in the Federal sphere, including the Province designating the TTC as an essential service and the Feds legislatively interfering labour disputes involving Air Canada and Canada Post, this case has arisen in Saskatchewan, and has provided - at the trial level - an answer to a question whose spectre was raised 11 years ago by the Supreme Court in the Dunmore decision: Does s.2(d) of the Charter of Rights and Freedoms guarantee a right to strike?
The History
In the early Charter jurisprudence, the Supreme Court pretty thoroughly rejected the notion that s.2(d) (freedom of association) protected union-related rights. However, in Dunmore the Supreme Court overturned those earlier cases, accepting that the freedom of association included the freedom to join unions.
Dunmore was important for a few reasons. It also has become a precedent for the Charter requiring what is characterized as 'positive government action'. Traditionally, Charter rights only restricted what a government could do. Freedom of expression prevents someone from being silenced, but does not require anyone to provide a soapbox. It means that the government can't force my blog to be shut down (without good reasons), but doesn't require the government to provide hosting for my blog, or to force Blogger to continue to host it.
So how does that apply to a right to join a trade union? Under a traditional Charter analysis, it would mean that the government can't make it illegal for a group to join a union. Early in the labour movement, but in days long past, this was the case. But with most groups these days have statutory rights to join unions, the question took on different dimensions: Dunmore was about the exclusion of agricultural workers from the labour relations regime, about saying to society at large, "Everyone can join unions...except these guys." The Court in Dunmore concluded that this had a chilling effect, that the exclusion of one group in itself sent a message to employers that agricultural unionization efforts would be illegitimate, and by doing so the government was interfering with such unionization efforts. In response, the legislature enacted a law, the AEPA, giving agricultural workers the right to join unions and make representations to employers. We'll come back to that in a minute.
The next question was what was included with this right to join a union. Can the employer proceed to ignore the union anyways, in the absence of a statutory regime telling them otherwise? Does s.2(d) include not just a right to join a union, but also a right to collective bargaining? And if so, does that impose a positive obligation on government to protect such a right?
The second case was B.C. Health Services in 2007, and the answer to the question was Yes. The British Columbia government had legislatively overridden several public sector collective agreements, and the Supreme Court found that this interfered with the associational rights of the individuals involved - a meaningful right to associate means protection of the objectives for which people associate, including collective bargaining. The case reinforced Dunmore and referenced the discussion from that case of 'underinclusive legislation'. I've tended to argue that the discussion of positive government action in B.C. Health Services is somewhat misplaced, since we are talking about a case involving the government actually legislatively undermining collective agreements, but I (though I'm probably alone in this) really don't read Health Services as meaningfully expanding the "positive obligations" scope from the extremely limited doctrine set forth in Dunmore.
Then, there was the third case, Fraser, dealing with the AEPA in Ontario. The objection was that the AEPA didn't obligate employers to actually negotiate in good faith when receiving representations from the union. The Supreme Court's response, in a remarkable feat of legislative interpretation (see my commentary here), was "Yes it does", finding that good faith obligations could be read into the statute, and that s.2(d) may guarantee a meaningful right of collective bargaining but does not guarantee any particular mode or structure for that collective bargaining.
I am somewhat disturbed by how far Fraser comes from Dunmore's 'the government can't substantially interfere with the right to organize' to 'the government is obligated to enact statutes imposing good faith obligations on employers'. But that's not for today.
What Now?
Yesterday, the Saskatchewan Court of Queen's Bench released a decision finding that s.2(d) constitutionally guarantees the right to strike. The facts involve a statute enacted which essentially imposes a wide-spread 'essential service' model, stripping public sector employees of the right to strike.
The Court noted the role of the strike in labour relations. In the private sector, a strike imposes economic pressure on both sides - the employees aren't making money, but the employer isn't getting labour. In the public sector, the pressure on the employer is different, usually being political in nature.
It's a lengthy decision, but I will deal with it in very brief terms for now, at the risk of oversimplifying: The Court views the strike as being a keystone of collective action - without the right to strike, to exert collective pressure against the employer, the right to collectively bargain is meaningless. Thus, s.2(d) must extend to the right to strike.
Further, Canada's international obligations and participation in ILO conventions tend toward the recognition of a right to strike.
My Thoughts
I'm not an expert in international law. There are people far smarter than me who have argued either way on this point in the wake of B.C. Health Services, but I dislike the invocation of international law in this context. It is difficult to accept that an international treaty, which governments can enter into or rescind, can inform the interpretation of the Canadian constitution.
In any event, even if my distaste for the Supreme Court's approach in Health Services is unsubstantiated, the Court in this case takes it further. You see, the right to strike is not expressly set out in the applicable ILO convention, but rather has been read in by the ILO over time. Namely, in 1971, the ILO appointed a Committee to inquire into a complaint against Greece, which concluded that the right to strike was implicitly protected by convention 87. The Saskatchewan Court here pointed out that Canada ratified the treaty in 1972, after that decision made it clear that the Committee on Freedom of Association was taking that position, and therefore it informs the contents of our international obligations, which in turn (following B.C. Health Services) inform the content of our Charter rights.
Okay, let's parse this for a second: We have freedom of association. Because, in 1972, we ratified a convention agreeing to protect collective bargaining, that gets lumped in with freedom of association. And because, in 1971, an international organization concluded that the right to strike was implicitly protected by a right to collectively bargain, that means our constitution must therefore guarantee a right to strike. Even if I were to put aside the heavy deference on an international organization's interpretation which was not at all informed by Canadian legal principles, this is starting to get a little disturbing for other reasons, but I'll get to that in a second.
The Court also refers to the presumption of conformity with international law, which is a principle of statutory interpretation suggesting that, in the absence of an irresistably clear intention not to comply with international obligations, a law should be read as being consistent with international obligations.
This is true. I'm quite fond of that principle, actually. I like international cooperation and multi-lateralism, and I'm fond of the fact that a government is unable to subtly legislate around its international obligations - it can do so, and should be able to do so, but has to admit openly that that's what it is doing.
But it's a rebuttable presumption, premised on the notion that "If the government really wanted to ignore its international obligations, it could have said so expressly." Moreover, if that's really what the government wanted to do, they can just go and amend the law to do so. When we're talking about Charter interpretation, that notion no longer exists. The Charter is there. It has been there since 1982, and it's nigh-impossible to amend. If we were talking about international obligations that post-date the Charter, I'd be deeply worried about the Court saying "Well, if they didn't want us to interpret the Charter to include this international obligation, they should have put that in the fine print of the Charter." Such a conclusion would be absurd.
In this case, of course, the international obligations predate the Charter, but if that's the deciding factor then that worries me for different reasons: Unlike that of our southern neighbours, the Canadian constitution is a "living tree". It grows and changes as the society it protects grows and changes. The intended meaning upon drafting isn't completely irrelevant, but nor is it determinative. American constitutional interpretation today is rather muddied by the fact that they feel beholden to the ideals, values, and intentions of those who drafted the document, well over two centuries ago. Two hundred years from now, when our society (and economy and workforce) has grown and evolved in ways that we can't necessarily imagine now, are we going to have to interpret our ongoing constitutional rights and obligations based on what a group of non-Canadians said about a conflict in Greece in 1971?
The answer, almost certainly, is No. That would be anathema to the entire history of Canadian constitutional jurisprudence. We leave it to our Courts to interpret and determine the contents of the Charter, and we trust them to consider these questions in meaningful and thoughtful ways. They cannot defer on questions of constitutional interpretation, and even if you grant that Canada's role in the international community may have some interpretive value, it simply cannot be the case that the Courts' hands can or will be tied in context of constitutional interpretation by the conclusions of an international organization. Canada can decide for itself whether or not meaningful freedom of association requires a right to strike. If our Courts find that it does not, that will not abrogate from the government's international obligations to recognize a right to strike anyways...but that's kind of my whole point: It is an *international* obligation, one that we have taken on and which is subject to our own sovereign statehood. That alone ought not to make it a constitutional obligation.
Furthermore, I'm not certain that I agree with the conclusion that a strike is necessary for meaningful collective bargaining. There are alternative models, including interest arbitration, for resolving irreconcilable disputes in bargaining.
There are problems with such arbitration, of course. Firstly, defining the mandate of the arbitrator can be difficult, directing them in what factors they should consider in coming to a decision. Secondly, widespread arbitration can result in a disconnect from free market pressures and bargaining power, resulting in wages which are either inordinately high or low with regard to market conditions, because arbitrated results tend to focus strongly on "What are other people getting?". (That being said, negotiated results often have that dimension, too.) Arbitration also tends to resist innovation - an arbitrator doesn't want to adjudicate something new between the parties that doesn't exist elsewhere.
Yet I'm not sure that any of these problems are such that they can be said to interfere with meaningful association by definition. While a statute that puts economic concerns of the employer at the forefront of an arbitrator's mandate would likely do so, a balanced formulation of the mandate is not impossible. As for the prospect of a break from market conditions, this could be built into the mandate to some extent. Not a perfect solution, but it's hard to imagine wages skyrocketing out of control, or unionized employees suddenly becoming drastically underpaid. And the issue of stagnation is troubling, but nor is it one-sided. If a party wants something new and different, they can still bargain for it, and bargaining may require compromise, on both sides. A no-strike model would likely have prevented Ford from bullying CUPE into compromising its job security provisions.
In light of Fraser, noting that no specific labour relations model is necessary, I think that the existence of no-strike alternative models which have been effectively used in some contexts will make it difficult for this decision to survive its appeals.
What next?
This will be appealed, likely all the way to the Supreme Court in time. If it holds up, the consequences will be widespread. Many of the current Federal government's actions will be seen as ultra vires (outside of their power), interfering with collective bargaining processes. Back-to-work legislation in general will become presumptively unconstitutional, unless it can be justified under section 1 of the Charter. Essential services legislation will be the same - most likely, the TTC's essential services designation will be done away with.
I don't like the approach taken by the Federal government to labour issues. I do think that, where the government is going to step in, a fair alternative is necessary, and that has not been happening. But, with fair alternatives available, I dislike the notion of an outright prohibition of government interference in labour disputes. Labour disruptions can and often do have major impacts on the public interest, and I'm not laissez-faire enough to say that we should always just leave it to market pressures to decide who's right.
*****
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.
HRTO Refuses to Hear Systemic Discrimination Claims
There is a new development in the Carasco v. University of Windsor case at the Human Rights Tribunal of Ontario. This is a case which has already drawn some attention because of the remedy being sought by the applicant: Emily Carasco is a law professor at the University of Windsor who alleges that the decision not to appoint her as Dean of Law was based in illegal discrimination, and is seeking an order from the Tribunal that the University appoint her to the position.
In a previous interim decision by the Tribunal, the Tribunal determined that it did have jurisdiction to award that remedy if it deemed such appropriate.
In support of her application, Carasco made significant allegations of systemic discrimination against women and minorities, particularly in senior positions, going back all the way to 1967, pointing out that all the Deans and Acting Deans - excepting only one Acting Dean from '83 to '85 and one Dean from '96 to '99 - have been white males. These allegations are made in support of public interest remedies sought, but if proven they would provide important background to Carasco's own allegations of individual discrimination, being something akin to similar fact evidence.
The effect on the narrative is quite clever: The argument is essentially that white males have always dominated the Faculty of Law, which is why she, a minority female who cares about equity, is unwelcome, and also why the Tribunal, which also cares about equity, should want to put her in a position of authority.
The new interim decision deals with Carasco's ability to advance allegations of systemic discrimination, and the Tribunal holds that she cannot advance allegations of discrimination that did not affect her. The Tribunal directed her to revise her Application to remove allegations where there is "no link" to alleged infringement of her individual rights, and to clarify what she's including as an allegation for which she's seeking relief and what she is including simply as evidence or background (for example, she alleges discrimination against her in the application dating back to when she was first hired in 1980, though the Tribunal infers that this is just background).
Does this mean that the systemic allegations of discrimination are completely out? Well, there's a proviso in the decision noting that something that doesn't properly form an allegation capable of generating a remedy may still be considered evidence in support of a remedial allegation. It wouldn't surprise me if Carasco still tries to get many of the systemic allegations as evidence in support of her own allegations.
My Thoughts
The Tribunal's decision not to allow her to bring an Application on behalf of others generally is an interesting question of its own, but I think there's a certain logic to the decision. As to the potential question of whether or not Carasco should be able to lead systemic discrimination evidence in support of her allegations of individual discrimination, I think that under the right circumstances such a thing should be possible, but I'm not sure that these are the right circumstances.
I would question the probative value of some of the statistics she brings to bear in support of her allegations of systemic discrimination. One cannot assume from looking at the demographics of occupants of a high-level job that the decision-makers for that particular position have been biased, unless one also looks at the demographics of the pools of qualified and interested candidates.
Deans of Law are drawn from relatively limited pools of senior legal scholars. In 1967, it goes without saying that the vast majority of senior legal scholars were white males. At that time, it even remained true that a very small minority of law students were women or visible minorities. So, even decades later, when students from that class had achieved the experience necessary for an appointment as Dean, it would still obviously have been true that the vast majority of candidates would have been white males.
Today, law school classes reflect the diversity of our society, and usually are more than 50% female. But there's obviously some catch-up on that before they'll become Deans, and there are other equity issues with which the profession is struggling which may result in continued inequity at senior levels: Among others, there are well-documented challenges with the profession's retention of women. A disproportionately high number of female lawyers leave the profession early, with the result that we're still going to see a smaller number of them at senior levels. That will create inequity in the candidate pools for Dean positions without by any means implicating the decision-makers in any discrimination.
Perhaps more to the point, even if you could establish that the hiring committee in 1967 excluded a qualified candidate on discriminatory grounds, it would be pretty difficult and tenuous to go from there to an inference that the current hiring committee, with no common links to the one 45 years ago, must therefore share the same improper values.
If there is solid evidence that the individuals who dictated the results of this contest, directly or indirectly, were prone to discriminate in such contests, that could support an inference of discrimination in this contest.
However, it seems to me that Carasco's allegations of systemic harassment are built largely on allegations against the amorphous and ethereal "they". Granted, the application is far too sophisticated to overuse the term "they" itself, it instead uses the passive tense, the "University" or the "administration", which glosses over the fact that the University and its administration are merely institutions, directed by individuals, which individuals have changed numerous times over the period which she discusses.
To be fair, she often does mention the individuals involved at certain points. For example, in 1990 she was passed over for a promotion in favour of a "white colleague" (female, notably), and she names the professors on the search committee; however, there is no clear link between these professors and the search committee for the Dean contest primarily at issue in this Application.
Then, in 1999, she was denied a promotion to full professor, which decision was overturned on an internal appeal. Of the four people she identifies as being on the promotions committee, at least two of them (including the dean) were not white males, and only one of the people on the promotions committee was at all involved in the dispute relating to the later Dean contest, and that relation was indirect. (This was Professor Moon, whom Carasco alleges 'sabotaged' her application to become Dean by making unfounded allegations of plagiarism during the contest.)
Even assuming that Carasco could establish a history of unfair treatment against her, it's an uphill battle to go from "I was treated unfairly" to "I was treated unfairly because of my race and/or gender". An Applicant is required to lead "clear and cogent evidence" of that the treatment was at least partly motivated by a prohibited ground of discrimination. Simply put, not all personal antipathy is based on race or gender, and antipathy not based on prohibited grounds of discrimination is not remedial by the Tribunal.
*****
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 a previous interim decision by the Tribunal, the Tribunal determined that it did have jurisdiction to award that remedy if it deemed such appropriate.
In support of her application, Carasco made significant allegations of systemic discrimination against women and minorities, particularly in senior positions, going back all the way to 1967, pointing out that all the Deans and Acting Deans - excepting only one Acting Dean from '83 to '85 and one Dean from '96 to '99 - have been white males. These allegations are made in support of public interest remedies sought, but if proven they would provide important background to Carasco's own allegations of individual discrimination, being something akin to similar fact evidence.
The effect on the narrative is quite clever: The argument is essentially that white males have always dominated the Faculty of Law, which is why she, a minority female who cares about equity, is unwelcome, and also why the Tribunal, which also cares about equity, should want to put her in a position of authority.
The new interim decision deals with Carasco's ability to advance allegations of systemic discrimination, and the Tribunal holds that she cannot advance allegations of discrimination that did not affect her. The Tribunal directed her to revise her Application to remove allegations where there is "no link" to alleged infringement of her individual rights, and to clarify what she's including as an allegation for which she's seeking relief and what she is including simply as evidence or background (for example, she alleges discrimination against her in the application dating back to when she was first hired in 1980, though the Tribunal infers that this is just background).
Does this mean that the systemic allegations of discrimination are completely out? Well, there's a proviso in the decision noting that something that doesn't properly form an allegation capable of generating a remedy may still be considered evidence in support of a remedial allegation. It wouldn't surprise me if Carasco still tries to get many of the systemic allegations as evidence in support of her own allegations.
My Thoughts
The Tribunal's decision not to allow her to bring an Application on behalf of others generally is an interesting question of its own, but I think there's a certain logic to the decision. As to the potential question of whether or not Carasco should be able to lead systemic discrimination evidence in support of her allegations of individual discrimination, I think that under the right circumstances such a thing should be possible, but I'm not sure that these are the right circumstances.
I would question the probative value of some of the statistics she brings to bear in support of her allegations of systemic discrimination. One cannot assume from looking at the demographics of occupants of a high-level job that the decision-makers for that particular position have been biased, unless one also looks at the demographics of the pools of qualified and interested candidates.
Deans of Law are drawn from relatively limited pools of senior legal scholars. In 1967, it goes without saying that the vast majority of senior legal scholars were white males. At that time, it even remained true that a very small minority of law students were women or visible minorities. So, even decades later, when students from that class had achieved the experience necessary for an appointment as Dean, it would still obviously have been true that the vast majority of candidates would have been white males.
Today, law school classes reflect the diversity of our society, and usually are more than 50% female. But there's obviously some catch-up on that before they'll become Deans, and there are other equity issues with which the profession is struggling which may result in continued inequity at senior levels: Among others, there are well-documented challenges with the profession's retention of women. A disproportionately high number of female lawyers leave the profession early, with the result that we're still going to see a smaller number of them at senior levels. That will create inequity in the candidate pools for Dean positions without by any means implicating the decision-makers in any discrimination.
Perhaps more to the point, even if you could establish that the hiring committee in 1967 excluded a qualified candidate on discriminatory grounds, it would be pretty difficult and tenuous to go from there to an inference that the current hiring committee, with no common links to the one 45 years ago, must therefore share the same improper values.
If there is solid evidence that the individuals who dictated the results of this contest, directly or indirectly, were prone to discriminate in such contests, that could support an inference of discrimination in this contest.
However, it seems to me that Carasco's allegations of systemic harassment are built largely on allegations against the amorphous and ethereal "they". Granted, the application is far too sophisticated to overuse the term "they" itself, it instead uses the passive tense, the "University" or the "administration", which glosses over the fact that the University and its administration are merely institutions, directed by individuals, which individuals have changed numerous times over the period which she discusses.
To be fair, she often does mention the individuals involved at certain points. For example, in 1990 she was passed over for a promotion in favour of a "white colleague" (female, notably), and she names the professors on the search committee; however, there is no clear link between these professors and the search committee for the Dean contest primarily at issue in this Application.
Then, in 1999, she was denied a promotion to full professor, which decision was overturned on an internal appeal. Of the four people she identifies as being on the promotions committee, at least two of them (including the dean) were not white males, and only one of the people on the promotions committee was at all involved in the dispute relating to the later Dean contest, and that relation was indirect. (This was Professor Moon, whom Carasco alleges 'sabotaged' her application to become Dean by making unfounded allegations of plagiarism during the contest.)
Even assuming that Carasco could establish a history of unfair treatment against her, it's an uphill battle to go from "I was treated unfairly" to "I was treated unfairly because of my race and/or gender". An Applicant is required to lead "clear and cogent evidence" of that the treatment was at least partly motivated by a prohibited ground of discrimination. Simply put, not all personal antipathy is based on race or gender, and antipathy not based on prohibited grounds of discrimination is not remedial by the Tribunal.
*****
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 24, 2012
The HRTO and the WSIB
I made a couple of entries (here and here) some time ago regarding s.45.1 of the Human Rights Code, being the provision that permits the HRTO to dismiss an Application where it feels that the subject matter has been "appropriately dealt with" in another proceeding.
The question, at its core, is whether or not the HRTO has the power to sit in review of human rights-related decisions of other statutory tribunals. After all, other Tribunals have the power to interpret the Human Rights Code, so it becomes contentious as to whether or not, after a Tribunal has done so, the HRTO can go in and second-guess its approach to the question. The Divisional Court found that the HRTO should not second-guess the decisions of other statutory Tribunals with a "public protection mandate". A slim majority of the Supreme Court, considering a similar issue out of B.C., took a broader approach, suggesting that the Tribunal should be deferential generally.
It is quite common to see somebody apply to the HRTO after being denied WSIB benefits, alleging discrimination on the basis of disability against the WSIB. These Applications are usually dismissed fairly quickly - the HRTO rightly does not want to become a review body for the WSIB.
But there's a case moving forward, Seberras v. WSIB, in which the Tribunal is closely examining its powers in these cases.
One of the key questions is whether or not the provision of statutory benefits (such as WSIB) is a "service" within the meaning of the Code, such that Code rights against discrimination attach. The Tribunal answered this question in the affirmative. Thus, the denial of benefits on discriminatory grounds under the Code will trigger HRTO jurisdiction.
The HRTO notes, too, that it should not become a review body for WSIB - anything that comes from the WSIB that is simply an appeal, simpliciter, will be dismissed for no reasonable prospect of success.
It's not entirely clear what kinds of decisions, then, will be heard by the HRTO, but I would postulate the following: If the WSIB denies benefits for reasons which are discriminatory, without considering the effects of the Code, then the HRTO will have jurisdiction to hear an Application based on those facts. On the other hand, if the WSIB actually considers the effects of the Code and concludes that its basis for denying benefits does not violate the Code, that's more likely to put the Application out of the Tribunals' jurisdiction - if a person disagrees with the WSIB's Code analysis, there's an appeal process for it.
Of course, if there isn't a proper Code analysis to be heard at all, that will also be dismissed. An applicant saying "The WSIB didn't believe that I'm injured" will have a tough time getting before the HRTO. (This is by contrast to the WSIB refusing to recognize a certain disability, for example.) If an applicant says "The WSIB didn't believe me because they're racist"...then that's likely to fail too, but for more complicated reasons.
In the Seberras case, the Applicant is challenging provisions of the WSIA itself - i.e. the statute creating the WSIB. This isn't exactly a constitutional challenge - that would have to go to Court. But the Code is what we call a "quasi-constitutional" statute, meaning that other statutes will be subject to the Code unless the Legislature expressly exempts them. So if provisions in the WSIA offend the Code, the Tribunal can hear an Application about the consequences thereof.
Again, the WSIB also has jurisdiction to consider such questions. This was a matter that the SCC decided not long ago in respect of ODSP: There was a provision in the ODSPA which essentially declined to recognize alcoholism as a disability, and the legal question became whether the Social Benefits Tribunal (a Tribunal set up to adjudicate disputes under the ODSPA, among others) had the power to interpret the Human Rights Code. The conclusion? The answer is yes, unless the legislature expressly says otherwise. The SBT could have and should have applied the Code and determined that the provisions saying that alcoholics couldn't get benefits...were unenforceable.
So again, it's a similar analysis. The WSIB has the jurisdiction to interpret and apply the Human Rights Code in matters before it. If it does so, then it's likely the case that the HRTO will have to dismiss a subsequent application based on s.45.1. If it does not, then the HRTO may have jurisdiction of human rights-related aspects of the decision.
*****
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 question, at its core, is whether or not the HRTO has the power to sit in review of human rights-related decisions of other statutory tribunals. After all, other Tribunals have the power to interpret the Human Rights Code, so it becomes contentious as to whether or not, after a Tribunal has done so, the HRTO can go in and second-guess its approach to the question. The Divisional Court found that the HRTO should not second-guess the decisions of other statutory Tribunals with a "public protection mandate". A slim majority of the Supreme Court, considering a similar issue out of B.C., took a broader approach, suggesting that the Tribunal should be deferential generally.
It is quite common to see somebody apply to the HRTO after being denied WSIB benefits, alleging discrimination on the basis of disability against the WSIB. These Applications are usually dismissed fairly quickly - the HRTO rightly does not want to become a review body for the WSIB.
But there's a case moving forward, Seberras v. WSIB, in which the Tribunal is closely examining its powers in these cases.
One of the key questions is whether or not the provision of statutory benefits (such as WSIB) is a "service" within the meaning of the Code, such that Code rights against discrimination attach. The Tribunal answered this question in the affirmative. Thus, the denial of benefits on discriminatory grounds under the Code will trigger HRTO jurisdiction.
The HRTO notes, too, that it should not become a review body for WSIB - anything that comes from the WSIB that is simply an appeal, simpliciter, will be dismissed for no reasonable prospect of success.
It's not entirely clear what kinds of decisions, then, will be heard by the HRTO, but I would postulate the following: If the WSIB denies benefits for reasons which are discriminatory, without considering the effects of the Code, then the HRTO will have jurisdiction to hear an Application based on those facts. On the other hand, if the WSIB actually considers the effects of the Code and concludes that its basis for denying benefits does not violate the Code, that's more likely to put the Application out of the Tribunals' jurisdiction - if a person disagrees with the WSIB's Code analysis, there's an appeal process for it.
Of course, if there isn't a proper Code analysis to be heard at all, that will also be dismissed. An applicant saying "The WSIB didn't believe that I'm injured" will have a tough time getting before the HRTO. (This is by contrast to the WSIB refusing to recognize a certain disability, for example.) If an applicant says "The WSIB didn't believe me because they're racist"...then that's likely to fail too, but for more complicated reasons.
In the Seberras case, the Applicant is challenging provisions of the WSIA itself - i.e. the statute creating the WSIB. This isn't exactly a constitutional challenge - that would have to go to Court. But the Code is what we call a "quasi-constitutional" statute, meaning that other statutes will be subject to the Code unless the Legislature expressly exempts them. So if provisions in the WSIA offend the Code, the Tribunal can hear an Application about the consequences thereof.
Again, the WSIB also has jurisdiction to consider such questions. This was a matter that the SCC decided not long ago in respect of ODSP: There was a provision in the ODSPA which essentially declined to recognize alcoholism as a disability, and the legal question became whether the Social Benefits Tribunal (a Tribunal set up to adjudicate disputes under the ODSPA, among others) had the power to interpret the Human Rights Code. The conclusion? The answer is yes, unless the legislature expressly says otherwise. The SBT could have and should have applied the Code and determined that the provisions saying that alcoholics couldn't get benefits...were unenforceable.
So again, it's a similar analysis. The WSIB has the jurisdiction to interpret and apply the Human Rights Code in matters before it. If it does so, then it's likely the case that the HRTO will have to dismiss a subsequent application based on s.45.1. If it does not, then the HRTO may have jurisdiction of human rights-related aspects of the decision.
*****
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, January 12, 2012
Rosa Parks she is not
This isn't an employment situation, but it's still in the human rights arena and related to other aspects of workplace law.
The Ottawa Citizen published this story about an OC Transpo rider being asked to move to the back of the bus. Why? Because she smelled like cigarette smoke, and this made the driver uncomfortable.
The commuter, Ms. Parent, says that she feels that she is being 'discriminated against' because she is a smoker, and thinks that dealing with "lots of different smells" is just part of the job of any person (such as a bus driver) who deals with the public.
That point isn't necessarily wrong. Smelly foods, often with specific cultural associations, or certain foods which cause people to have certain scents, have interesting human rights dimensions. Asking somebody to move to the back of the bus because she smells like curry...well, that could be troublesome. So a driver probably has to cope with such a scent.
But cigarette smoke isn't curry. As far as I know, there is no jurisprudence to date identifying smoking as being related to any prohibited grounds of discrimination, with the result that there is nothing legally wrong with taking adverse measures against smokers, like asking them to sit at the back of the bus. (Morally wrong? I would think not. We've been marginalizing smokers for years, and the consequence has been a drastic reduction in the number of people who continue or start smoking - very positive for public health. Indeed, twenty years ago it would have been absurd for somebody to try to avoid the 'smoker' smell, because it was so pervasive.) If there were a connection between smoking and a prohibited ground of discrimination, then we would have to apply a Human Rights and/or Charter analysis to all sorts of no smoking policies and smoking-related laws.
However, it is not outside the realm of possibility that smoking could be interpreted as falling within the framework of a prohibited ground; alcohol addiction is well-established as a disability, and it is not inconceivable that a similar rationale could be applied to nicotine addiction. (I would tend to distinguish nicotine addiction, however: An alcoholic is driven to consume alcohol, which directly impairs one's psychological and cognitive abilities to a significant extent; the same is not true of nicotine.)
On the flip side, however, I'm not sure that any particular entitlement exists for the driver not to be exposed to the smell of smoke. I'm not aware of any data establishing adverse health effects of smelling people who have smoked (which strikes me as being somewhat different from second-hand smoke), so I doubt there's a health and safety argument to be made. It's simply a matter of preference (though, as a non-smoker, I must say that I find the preference quite understandable). So if OC Transpo decided that it did not want smokers forced to the back of the bus, it would probably be entitled to direct the driver not to do so.
*****
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 Ottawa Citizen published this story about an OC Transpo rider being asked to move to the back of the bus. Why? Because she smelled like cigarette smoke, and this made the driver uncomfortable.
The commuter, Ms. Parent, says that she feels that she is being 'discriminated against' because she is a smoker, and thinks that dealing with "lots of different smells" is just part of the job of any person (such as a bus driver) who deals with the public.
That point isn't necessarily wrong. Smelly foods, often with specific cultural associations, or certain foods which cause people to have certain scents, have interesting human rights dimensions. Asking somebody to move to the back of the bus because she smells like curry...well, that could be troublesome. So a driver probably has to cope with such a scent.
But cigarette smoke isn't curry. As far as I know, there is no jurisprudence to date identifying smoking as being related to any prohibited grounds of discrimination, with the result that there is nothing legally wrong with taking adverse measures against smokers, like asking them to sit at the back of the bus. (Morally wrong? I would think not. We've been marginalizing smokers for years, and the consequence has been a drastic reduction in the number of people who continue or start smoking - very positive for public health. Indeed, twenty years ago it would have been absurd for somebody to try to avoid the 'smoker' smell, because it was so pervasive.) If there were a connection between smoking and a prohibited ground of discrimination, then we would have to apply a Human Rights and/or Charter analysis to all sorts of no smoking policies and smoking-related laws.
However, it is not outside the realm of possibility that smoking could be interpreted as falling within the framework of a prohibited ground; alcohol addiction is well-established as a disability, and it is not inconceivable that a similar rationale could be applied to nicotine addiction. (I would tend to distinguish nicotine addiction, however: An alcoholic is driven to consume alcohol, which directly impairs one's psychological and cognitive abilities to a significant extent; the same is not true of nicotine.)
On the flip side, however, I'm not sure that any particular entitlement exists for the driver not to be exposed to the smell of smoke. I'm not aware of any data establishing adverse health effects of smelling people who have smoked (which strikes me as being somewhat different from second-hand smoke), so I doubt there's a health and safety argument to be made. It's simply a matter of preference (though, as a non-smoker, I must say that I find the preference quite understandable). So if OC Transpo decided that it did not want smokers forced to the back of the bus, it would probably be entitled to direct the driver not to do so.
*****
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.
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