I've made several posts in the last couple of months about the interpretations of Bill 168 that are starting to flow from the OLRB. The question: Now that an employer has to have a policy in place for dealing with reprisals, does the anti-reprisal clause in the Occupational Health and Safety Act cover reprisals suffered as a result of making a harassment complaint?
Here's a brief summary of the cases I've looked at so far:
Conforti v. Investia, September 23 2011 (my commentary here): Vice-Chair McLean holds that s.50 (the anti-reprisal clause) probably doesn't give the Board jurisdiction to hear matters arising from reprisals for harassment complaints, and only would apply to reprisals for an employee asking an employer to implement a harassment policy pursuant to its obligations. However, it isn't necessary to decide the point because the facts don't support reprisal allegations anyways.
Harper v. Ludlow, November 18 2011 (my commentary here): Vice-Chair Serena reviews the reasoning in Conforti and concludes that Vice-Chair McLean was absolutely right, and the Board has no jurisdiction over reprisals for harassment complaints.
Walters v. PPL, January 4 2012 (my commentary here): Vice-Chair Kelly notes the Conforti and Harper decisions, but declines to address the question of jurisdiction because he doesn't accept that there was reprisal anyways.
I was quite critical of the reasoning in Harper and Conforti, arguing that the amendments that Bill 168 made to the Occupational Health and Safety Act should inform our understanding of what constitutes a healthy and safe work environment, and that harassment should be seen as compromising health and safety. To apply the strict reading of the amendments as set out in those decisions would be to render the harassment provisions of Bill 168 essentially meaningless - form without substance. The employer would be obligated to implement a policy, but there would be no requirement for the employer to actually abide by its own policy. (Indeed, there would be no substantive requirements of the policy itself. Under that interpretation, an employer would comply with the legal requirements by implementing a policy that encourages harassment and creates a complaint mechanism that involves writing down the complaint on a piece of paper and immediately throwing the paper into the shredder.)
Upon reading Walters, however, I took Vice-Chair Kelly as saying that he doesn't necessarily consider the question closed, and that it is possible that, under the right facts, the Board might yet come to a conclusion which breaks from the reasoning in Conforti.
There are other decisions to look at, as well.
In Murphy v. Carpenters (December 23, 2011), the Respondent was seeking reconsideration of a decision not to dismiss the application for failing to disclose a prima facie case. The original decision was made after Conforti but before Harper, and dealt with a similar allegation of reprisal. The Respondent felt that the reasoning in Conforti (which the Respondent felt may not have come to the attention of the Vice-Chair, Caroline Rowan) and Harper should lead to a dismissal of this case.
Vice-Chair Rowan noted that she had reviewed Conforti prior to making the original decision, and so Harper didn't change anything. She distinguished this case on the facts: Murphy's allegations are that the employer did not have the required harassment policy and that he "sought management's assistance in dealing with his immediate supervisor's conduct", and that he was fired as a consequence. After being fired, he contacted the Ministry of Labour, and the employer was subsequently ordered to implement a harassment policy.
Vice-Chair Rowan isn't expressly saying that s.50 does protect employees in positions such as Murphy (provided that he can prove his allegations), but she is clearly saying that it might.
This debate clearly isn't closed.
Other cases on the topic include Stainton v. Springdale Country Manor, in which case Vice-Chair Ian Anderson noted that it is "far from clear" that complaining about harassment is protected by s.50 (referencing Conforti), but he ultimately decided the case on the basis that no actions were alleged of the employer which could have been considered reprisals under the Act anyways.
In three other cases, Vice-Chair Anderson has sought submissions from the parties as to whether or not applications should be dismissed on the basis of the reasoning in Conforti.
Consequences
The one thing that is very clear is that employers are obligated to implement harassment policies. Many employers are still not compliant, and it is important that they correct this as soon as possible. Murphy simply highlights that need: It's still too early to tell where the law will lie when the dust settles, but Murphy suggests that having a policy at the outset could make a critical difference if an employee comes back alleging reprisal.
*****
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 administrative tribunals. Show all posts
Showing posts with label administrative tribunals. Show all posts
Thursday, January 26, 2012
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.
Tuesday, January 17, 2012
Self-Represented Litigants
There's an interesting phenomenon which one can easily notice when surveying jurisprudence: When one side is self-represented, and the other is represented by a lawyer, the side represented by a lawyer is almost always successful.
This is just as true at the Human Rights Tribunal and Small Claims Court - processes designed to be more accessible to self-represented litigants - as at other court levels. (Indeed, the trend is more easily seen at those levels, because there are many more self-represented litigants.)
Why is this?
I could engage in shameless self-promotion and say that it's because a lawyer's advocacy skills are superior to the self-represented litigant; the lawyer is able to present his client's case in a better light and convince the adjudicator to come down on his side. To some extent, this is true - the advocacy aspects of law are not to be underestimated. But it is only a part of the explanation, I think.
I have heard people argue that Courts and Tribunals do not treat self-represented litigants fairly, and do not take them seriously. I don't really believe this - in terms of process, Courts and Tribunals bend over backwards for self-represented litigants. And it's far easier for me to believe that a Court is ignoring a self-rep's argument because of the tenuous (or non-existent) merits of the argument itself, rather than an inherent bias towards self-represented litigants. You might be surprised by how many times I have seen people who represented themselves complain that the judge ignored their incontrovertible proof that they were right...where it does not appear to me that the facts proven have any relevance to the issues in dispute. If there is an aspect of the system that does not treat self-represented litigants fairly, it is the fact that the legal system itself is so arcane and complicated that it cannot easily be understood by a self-represented litigant.
No, the biggest reason for the discrepancy in the jurisprudence is that a self-represented litigant is less likely than a represented party to be aware of the inherent difficulties of his or her position. In other words, they will litigate matters that should not be litigated, taking positions which any lawyer would know are unsustainable.
I have been retained to act opposite self-represented litigants on a few occasions. The truth is that this makes my job harder. When I am facing a lawyer on the opposite side, we have a common understanding of process and substantive law. This means that I expect to be able to have a meaningful discussion with the lawyer about settlement, and if we cannot settle the matter, it is usually because the matter is one which reasonably calls for adjudication. Moreover, it means that I can usually expect the lawyer to follow the proper process, disclosing the necessary documents in a timely manner, etc. With a self-represented litigant, you never know what you may have to deal with.
On one occasion that particularly stands out, I dealt with a self-rep taking a position which was quite weak, but she did not file or serve any documents in advance of the application hearing. It was not even clear that she would show up. Because of the failure to serve documents, she was not technically entitled to even address the Court on the matter, much less to lead any evidence. The trouble is that, as I noted above, the Courts tend to bend over backwards for self-represented litigants, so there was a risk that she would be allowed to do both. Being cognizant of the possibility, I had to spend even more time preparing for the hearing than I would have had to if it were a lawyer on the other side.
Lo and behold, she shows up with a sheaf of documents in hand that she wants to rely on. I was pretty confident in my case, but nonetheless I didn't want to have to deal with documents I had never seen before, so I took a position which I felt I could portray as eminently reasonable: I won't object to her making submissions, but I will object to her relying on any documents or other evidence not properly before the Court. The judge agreed. Not surprisingly, she had to be curbed a couple of times during her submissions when she tried to branch off into unsupported facts. Not surprisingly, my client was successful. Equally unsurprisingly, my client got a costs award - it didn't address her costs in full, yet it was still a substantial amount of money for the other party.
The lesson is simple: Lawyers may be expensive, but they are important. It isn't just that they'll help you to win your case, or achieve a more favourable settlement, but there is also significant value added in learning that your case is unlikely to be successful. People are always coming to me for good news. They always want me to tell them that they're right to do what they hope to do, or that they're going to be successful in their cases. Fortunately for all of them, I don't bow to that pressure. I give advice which is realistic and practical. But, as disappointing as realistic advice may be in some situations, knowing what you can't do is just as important as knowing what you can do in terms of managing risk and reducing liabilities. And if you're already in litigation, knowing that you will most likely not succeed can be just as valuable as knowing that you likely will.
*****
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.
This is just as true at the Human Rights Tribunal and Small Claims Court - processes designed to be more accessible to self-represented litigants - as at other court levels. (Indeed, the trend is more easily seen at those levels, because there are many more self-represented litigants.)
Why is this?
I could engage in shameless self-promotion and say that it's because a lawyer's advocacy skills are superior to the self-represented litigant; the lawyer is able to present his client's case in a better light and convince the adjudicator to come down on his side. To some extent, this is true - the advocacy aspects of law are not to be underestimated. But it is only a part of the explanation, I think.
I have heard people argue that Courts and Tribunals do not treat self-represented litigants fairly, and do not take them seriously. I don't really believe this - in terms of process, Courts and Tribunals bend over backwards for self-represented litigants. And it's far easier for me to believe that a Court is ignoring a self-rep's argument because of the tenuous (or non-existent) merits of the argument itself, rather than an inherent bias towards self-represented litigants. You might be surprised by how many times I have seen people who represented themselves complain that the judge ignored their incontrovertible proof that they were right...where it does not appear to me that the facts proven have any relevance to the issues in dispute. If there is an aspect of the system that does not treat self-represented litigants fairly, it is the fact that the legal system itself is so arcane and complicated that it cannot easily be understood by a self-represented litigant.
No, the biggest reason for the discrepancy in the jurisprudence is that a self-represented litigant is less likely than a represented party to be aware of the inherent difficulties of his or her position. In other words, they will litigate matters that should not be litigated, taking positions which any lawyer would know are unsustainable.
I have been retained to act opposite self-represented litigants on a few occasions. The truth is that this makes my job harder. When I am facing a lawyer on the opposite side, we have a common understanding of process and substantive law. This means that I expect to be able to have a meaningful discussion with the lawyer about settlement, and if we cannot settle the matter, it is usually because the matter is one which reasonably calls for adjudication. Moreover, it means that I can usually expect the lawyer to follow the proper process, disclosing the necessary documents in a timely manner, etc. With a self-represented litigant, you never know what you may have to deal with.
On one occasion that particularly stands out, I dealt with a self-rep taking a position which was quite weak, but she did not file or serve any documents in advance of the application hearing. It was not even clear that she would show up. Because of the failure to serve documents, she was not technically entitled to even address the Court on the matter, much less to lead any evidence. The trouble is that, as I noted above, the Courts tend to bend over backwards for self-represented litigants, so there was a risk that she would be allowed to do both. Being cognizant of the possibility, I had to spend even more time preparing for the hearing than I would have had to if it were a lawyer on the other side.
Lo and behold, she shows up with a sheaf of documents in hand that she wants to rely on. I was pretty confident in my case, but nonetheless I didn't want to have to deal with documents I had never seen before, so I took a position which I felt I could portray as eminently reasonable: I won't object to her making submissions, but I will object to her relying on any documents or other evidence not properly before the Court. The judge agreed. Not surprisingly, she had to be curbed a couple of times during her submissions when she tried to branch off into unsupported facts. Not surprisingly, my client was successful. Equally unsurprisingly, my client got a costs award - it didn't address her costs in full, yet it was still a substantial amount of money for the other party.
The lesson is simple: Lawyers may be expensive, but they are important. It isn't just that they'll help you to win your case, or achieve a more favourable settlement, but there is also significant value added in learning that your case is unlikely to be successful. People are always coming to me for good news. They always want me to tell them that they're right to do what they hope to do, or that they're going to be successful in their cases. Fortunately for all of them, I don't bow to that pressure. I give advice which is realistic and practical. But, as disappointing as realistic advice may be in some situations, knowing what you can't do is just as important as knowing what you can do in terms of managing risk and reducing liabilities. And if you're already in litigation, knowing that you will most likely not succeed can be just as valuable as knowing that you likely will.
*****
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, January 4, 2012
Company not advised of employee's concerns; OLRB concludes no constructive dismissal
I very frequently get calls from people who think they see the 'writing on the wall', so to speak, worried that they are about to get fired. There are various reasons that these concerns arise, ranging from disciplinary measures to reorganization of job functions or reassignment of duties. Regardless of the reason, it is very stressful on employees to go into work every day feeling like, to borrow a comparison from the late Justice Echlin, the sword of Damocles is hanging over their heads, and there is often a real temptation to pre-empt the termination by quitting.
I generally advise against that. If the core of an employee's concern is that they are worried that they will be fired, then I often say "Let them fire you, then." Don't give them a reason, of course - you don't want to be dismissed for just cause - but the truth is that it usually isn't all that hard to not give them just cause.
If you're fired for just cause, the employer has to prove that they had just cause, and this is a high threshold. If you're fired without cause, then the only question is how much money you're entitled to. If you quit, however, the onus is upon you to establish that you were constructively dismissed, and this often puts an employee into a weaker bargaining position.
The recent OLRB case of Webster v. Securitas Canada Limited is a cautionary tale about quitting in advance of an expected termination, and may be a significant comfort to employers concerned about an employee quitting out of the blue and then claiming constructive dismissal.
Ms. Webster was a non-union office worker with the employer for several years. She quit her job in July 2010, and brought a proceeding at the OLRB seeking statutory termination pay on the basis that of a claimed constructive dismissal. The OLRB rejected the claim.
There were four alleged bases for the claim:
(1) Change in Compensation
This strikes me as something that was likely thrown in to try to bolster the claim on other grounds. She was removed from the bonus plan at the start of 2010, but was given a raise to make up for it reflecting the average bonus for the previous 3 years, and she signed off on the change. The OLRB found that this change was not significant enough to constitute a constructive dismissal, and in any event she did not resign in response to this change, particular given her acceptance of it at the time, and even if she had it was not within a reasonable time.
Personally, I question the OLRB's way of reaching this conclusion. It has broken down the bases of alleged constructive dismissal into discrete areas, which raises concerns for me. Bear in mind that the statutory test for termination pay on constructive dismissal is threefold: The employee must have been constructively dismissed; the employee must have resigned in response to the constructive dismissal; the resignation must be within a reasonable time.
The trouble with using discrete analyses for separate changes to an employment relationship is that it can ignore the cumulative effect of the changes. There is no reason why a series of changes over a modest period of time could not, taken together, constitute a constructive dismissal even where a single change could not. If I resign because of the constructive dismissal generated by a series of events, one cannot look to the first event in the series and say "He didn't quit because of that", nor can one reasonably say that the clock on the "reasonable time" starts at the time of the first event.
The Board member is aware of this argument, and does address it towards the end of the decision, acknowledging that it must be determined whether or not the changes to the employment relationship cumulatively constitute a constructive dismissal. My concern is that, for all of the detailed reasons which go into the Board's rejection of each of the four grounds individually, the cumulative analysis is quite cursory. I would argue not only that the cumulative analysis is more important, but that the individual analysis is actually quite unimportant, bordering on irrelevant.
However, this ground may have had another fatal flaw. That she signed off on the change should have only one, if any, effect on the test: If her agreement was legally binding (i.e. amended the contract at law) then the change was not unilateral by the employer, and therefore cannot form a constructive dismissal.
(2) Change in Reporting Structure
Prior to her resignation, her direct supervisor changed. She had been reporting to the IT manager and the Human Resources manager; the new supervisor was a Human Resources professional who was not a manager. She didn't have a problem with the new supervisor, but alleged that it reduced her status.
The OLRB finds that there are a couple of problems with this argument: Firstly, "this concern was never raised with the employer prior to the resignation", and secondly she appeared not to have been aware that her new supervisor was not a manager until after starting the complaint process.
(3) Change in Duties
The IT manager, noted above, was terminated when the IT function was moved to the United States in early 2010. Thus, her IT-related duties disappeared.
However, the work she continued to do was similar in kind to the duties she did beforehand.
(4) Lack of Work
This seems likely to be where the crux of the issue was. After her IT-related duties were eliminated, she no longer had enough work to keep her busy. She felt "unsatisfied, unneeded, and unwanted". In essence, she thought it was just a matter of time before she was laid off because she was no longer needed there.
The Board rejects this argument, too, finding that the company was in transition, and she was obligated to "give the employer time to work through the transition, or if she was very concerned, raise the concerns with the employer."
My Thoughts
I touched on the issue of the cumulative effect above, and I think the Board's analysis somewhat ignores the totality of the narrative: First they take away my bonus, then they remove my IT functions and lay off my manager, and relieve my other manager of the burden of me reporting to her, then they don't give me any new work. They took away everything about my job except my salary, and were essentially just paying me to twiddle my thumbs.
This issue doesn't frequently arise in the jurisprudence, because employers don't generally like to pay employees to do nothing, but there's a pretty decent argument to be made that an employee does have a contractual right to their duties - not just the salary, but also to the actual job, for two reasons. Firstly, experience is important. Many jobs are stepping stones on a career path, that you take for the experience of the position and not just for the salary. Secondly, it has long been accepted in the jurisprudence that a person's job is integral to their sense of self-worth. That's a reflection of the duties, about the satisfaction of doing one's job, and not just about taking home the pay cheque at the end of the day.
I'm not saying I think the Board's decision is wrong. Assuming that she did have an obligation to put the employer on notice of her concerns, the Board is almost certainly right.
I'm not sure where that obligation originates, though. It seems a reasonable expectation of the employer, of course, to be able to correct this sort of thing before liabilities are incurred, and yet at the same time I have concerns about the consequences of such a doctrine. Constructive dismissal is often about the straw that broke the camel's back. I have concerns about this, that, and the other thing. I don't want to make a stink, because I don't want to risk conflict with my manager. But these push me to the breaking point. Then the employer crosses the line one last time, so I quit.
Yes, it's a healthier working environment when an employee is comfortable approaching his or her manager with concerns, and where the manager can process and address concerns. But in reality, many (most?) workplaces don't work that way. The employees do what they're told, the managers expect nothing less, and both employer and employee often expects that if an employee doesn't like how the employer does business, the employee can leave. That is what constructive dismissal is. It isn't about the employer refusing to reasonably address employee concerns, it's about the employer unilaterally changing the relationship in a fundamental way. To argue that the employee is obligated to go back to the employer and say "Change it back or I'm out" before a constructive dismissal can be said to have occurred in effect gives the employers an unlimited right to make changes to the employment relationship and an obligation only to negotiate about these changes after the fact. That's not what the law does.
*****
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.
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, November 24, 2011
Bill 168 - Reprisals Update
Many of my entries seem to be very timely. On November 18th, 2011, I made an entry about the OLRB's decision in Conforti v. Investia Financial Services Inc., in which the Board suggested that the anti-reprisal clause in the Occupational Health and Safety Act may not apply to reprisals against employees who make complaints under the harassment policies which the Act requires employers to implement, since Bill 168 became law last year.
The Harper v. Ludlow Technical Products Canada Ltd. case was decided on November 18th, as well, in which Vice-Chair Susan Serena dealt with the question head on. Nearly her entire reasons are an excerpt from Conforti, and she concluded:
the Board does not have the jurisdiction under either section 50 or Part 111.0.1 of the OHSA over a complaint that alleges the company did not comply with its workplace harassment policy and/or the applicant was subjected to a reprisal after she filed a workplace harassment complaint
That being decided, let's look at some of the finer points of the interpretation. In the excerpt from Conforti, we find the Board concluding that the Act does not require an employer to keep the workplace free of harassment, nor does it require any particular response to harassment complaints. The Act only requires the implementation of a policy regarding harassment, and a program explaining to workers how to make complaints of harassment and detailing how the employer will respond. Only the absence of the policy and program would constitute a violation of the Act, so only an employee complaining about the complete absence of a policy gets protection by the anti-reprisal provisions. Complaining about deficiencies in the policy does not get protection against reprisals, because the Act doesn't have minimum requirements for the contents of the policy. Complaining about how the employer responded to the policy doesn't get protection against reprisals, because the Act doesn't dictate how the employer has to respond. And even a complaint under the policy does not get anti-reprisal protection, because the language of the anti-reprisal provision deals with employees seeking enforcement of the Act, and the absence of a statutory requirement that employers actually address harassment means that complaining about harassment isn't seeking enforcement of the Act.
One can understand why the OLRB would not want to get caught up in assessing the merits of a policy, whether or not an employer has complied with its policy, nor whether or not the employer's response amounts to 'reprisal'. Let's face it, 'harassment' is a pretty amorphous concept, even as defined in the Act, and there would be large numbers of cases with large grey areas if the Board suddenly opened up its doors to anyone who felt harassed. Even on the anti-reprisal side, it's easy to see a huge number of fights over whether or not an action was 'harassment' or 'reasonable discipline', and then whether or not the subsequent termination was a reprisal for a harassment complaint or the response to additional disciplinary conduct. (Not all discipline leads to termination, but most 'for cause' terminations follow a series of disciplinary events. If there's a fight over whether not an earlier one is 'harassment', then we get into an anti-reprisal fight too.)
But when the OLRB is framing this as a jurisdictional limitation, it is speaking in absolutes. If the Act doesn't set any standards and doesn't give them jurisdiction to even inquire into such cases, then the inevitable conclusion is that it doesn't matter how obviously defective or inappropriate a harassment policy is, or how ridiculous an employer's response is to a complaint under the policy - so long as there is a policy, the employer is in compliance.
Here's an argument from absurdity: Imagine that I am an employer, and I implement a harassment policy saying that I encourage harassment to toughen up everyone in the workplace. The program says that people who feel that they are victims of harassment should suck it up, but if they really want to complain about it, they can come to me with the complaint and I will interrogate them thoroughly about it and ensure that they are put on the most menial duties imaginable for a period of time to be determined. And in practical terms, I decide I'll fire anyone who complains about harassment.
On the OLRB's strict reading of the harassment language, my obligations are to "prepare a policy with respect to workplace harassment" (check), and to implement a program to implement the policy which includes "measures and procedures for workers to report incidents of workplace harassment" (check) and "set out how the employer will investigate..." (check) "...and deal with incidents and complaints of workplace harassment" (check). According to the OLRB, all my obligations are satisfied, and they can't do anything about my patently absurd policy. Even if an employee comes to me and tells me in good faith that they don't think that the policy is good enough, I can fire them for that too under the OLRB's interpretation.
There are countless problems with this approach. The first and most obvious is that it completely defeats the purpose of the harassment provisions in Bill 168. The second is that, while you might think that the words "with respect to workplace harassment" are pretty broad, the plain language of the provisions in their totality makes it clear that there are additional obligations. The program has to set out "how the employer will investigate and deal with incidents and complaints of workplace harassment." If I have to create a program saying how I will do something, it doesn't make sense to suggest that I don't actually have to do it. So implied in that obligation is an obligation to "investigate" and to "deal with" harassment complaints. And it is patently absurd to think that these obligations are completely devoid of some contents, at least to the extent that the investigation should be one that is carried out in good faith and that "deal with" requires a good faith attempt to resolve the issues.
*****
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.
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, November 18, 2011
Bill 168: Harassment Complaints and Reprisals
I came across an interesting case today, a recent decision by the Ontario Labour Relations Board in Conforti v. Investia Financial Services Inc. Two issues arise: What does "harassment" mean, and what are the limits of an employee's rights following the implementation of Bill 168?
The Facts
Put briefly, Mr. Conforti was disciplined for emails which were "less than professional, specifically belligerent and derogatory in nature". The emails are reproduced in the decision, and, as the Board observes, this characterization was "undoubtedly accurate". He was advised that further such communications would result in the termination of his employment.
He then sent an email back a few days later, alleging harassment, in a tone which remained disrespectful, and was fired two days later. He applied to the OLRB for recourse based on reprisal.
What does "harassment" mean?
The Occupational Health and Safety Act now defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in the workplace that is known or ought reasonably to be known to be unwelcome".
Read literally, one might think that this means that, if you do anything at all that vexes an employee knowing that it isn't welcome, it's harassment. So if I ask an employee to complete a difficult task that I know he doesn't enjoy, or if I discipline an employee for engaging in misconduct, are these things harassment?
Of course, most lawyers know better than to read things so literally. It seems pretty obvious that employers remain entitled to exercise certain rights...but exactly how far do those rights go?
Traditionally, harassment was the stuff of Human Rights-based claims, and had to be based upon a prohibited ground (race, age, sex, etc.), and countless claims of unfair and 'discriminatory' treatment died for absence of a connection to a prohibited ground of discrimination. Does Bill 168 open a door to recourse for treatment that is simply unfair? If I am your manager, and I decide that I don't like you, and so I assign you to do all the unpleasant tasks in the department and have your co-workers do all the fulfilling and interesting tasks, is that harassment? Does it make a difference if my assignments are based not on personal emnity, but on a good faith assessment of competence?
These are nuanced questions, the likes of which we can expect to arise routinely in the jurisprudence in the not-so-distant future. As the Board observes in Conforti, there is a risk "the Board's resources will be overwhelmed by employee complaints arising out of routine disciplinary matters".
Does the anti-reprisal section of the OHSA prohibit reprisals for making complaints?
While ultimately not deciding the point, the Board suggests that the only obligations in respect of harassment of Bill 168 are that an employer implement anti-harassment policies and programs, and that s.50 of the Act, which protects employees against reprisals for acting in compliance with the Act, seeking enforcement of the Act, or giving evidence in proceedings under the Act, does not in fact protect employees against reprisals for making a complaint under the anti-harassment policy.
The Board looks at its own historical jurisprudence (pre-Bill 168) finding that harassment wasn't remedial under the Occupational Health and Safety Act, and concludes that, if the government had intended to require employers to keep their workplaces free of harassment, it would have included a provision in the Act saying so expressly.
In other words, by the reasoning of this Board Member, an employer could implement an anti-harassment policy as legally required and then make a practice of immediately firing any employee who makes a complaint under the policy, and this would be perfectly permissible under the Act.
My Thoughts
In my respectful opinion, the obiter on the latter issue is complete and utter nonsense. The OHSA imposes some extremely broad obligations on employers. Many obligations are specific to certain types of physical hazards, which is likely why the OLRB has not traditionally seen harassment as coming within its scope, but many are not. See, for example, s.25(2)(h), that an employer shall "take every precaution reasonable in the circumstances for the protection of the worker".
In the context of the Act prior to Bill 168, it isn't hard to see why harassment might not have often been seen as included: It really wasn't designed with that sort of issue in mind. That being said, in certain exceptional cases, a broader view was taken - for example, Arbitrator Shime's decision in the 2004 Stina grievance against the TTC found a remedy in the OHSA for harassment which caused severe emotional distress. (And if you look through annotated versions of the Act, it looks out of place in the case list: This employee died, that employee died, that employee lost an arm, that employee lost a leg, that employee became depressed. Not to belittle depression - it can indeed be very debilitating - but hazards to mental health clearly aren't easily compared to hazards to physical health.)
What the Board member is forgetting is that, today, there is only one principle of statutory interpretation, which is this: "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."
So, with harassment now having a place on the podium of the OHSA, it does not make sense to continue to read the employer's general obligations to maintain a safe working environment as not including an obligation to maintain an environment which is harassment free. If we interpret the OHSA as it stands now to permit reprisal for complaints made under the mandatory policy, or as not imposing obligations on the employer in respect of the manner in which complaints under the policy are handled, it would completely undermine the purpose of the mandatory policy.
If this interpretation holds the day, then Bill 168 becomes essentially meaningless. It would require employers to incur the expense of developing policies, without contributing to employee protection in any meaningful way.
*****
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
Put briefly, Mr. Conforti was disciplined for emails which were "less than professional, specifically belligerent and derogatory in nature". The emails are reproduced in the decision, and, as the Board observes, this characterization was "undoubtedly accurate". He was advised that further such communications would result in the termination of his employment.
He then sent an email back a few days later, alleging harassment, in a tone which remained disrespectful, and was fired two days later. He applied to the OLRB for recourse based on reprisal.
What does "harassment" mean?
The Occupational Health and Safety Act now defines workplace harassment as "engaging in a course of vexatious comment or conduct against a worker in the workplace that is known or ought reasonably to be known to be unwelcome".
Read literally, one might think that this means that, if you do anything at all that vexes an employee knowing that it isn't welcome, it's harassment. So if I ask an employee to complete a difficult task that I know he doesn't enjoy, or if I discipline an employee for engaging in misconduct, are these things harassment?
Of course, most lawyers know better than to read things so literally. It seems pretty obvious that employers remain entitled to exercise certain rights...but exactly how far do those rights go?
Traditionally, harassment was the stuff of Human Rights-based claims, and had to be based upon a prohibited ground (race, age, sex, etc.), and countless claims of unfair and 'discriminatory' treatment died for absence of a connection to a prohibited ground of discrimination. Does Bill 168 open a door to recourse for treatment that is simply unfair? If I am your manager, and I decide that I don't like you, and so I assign you to do all the unpleasant tasks in the department and have your co-workers do all the fulfilling and interesting tasks, is that harassment? Does it make a difference if my assignments are based not on personal emnity, but on a good faith assessment of competence?
These are nuanced questions, the likes of which we can expect to arise routinely in the jurisprudence in the not-so-distant future. As the Board observes in Conforti, there is a risk "the Board's resources will be overwhelmed by employee complaints arising out of routine disciplinary matters".
Does the anti-reprisal section of the OHSA prohibit reprisals for making complaints?
While ultimately not deciding the point, the Board suggests that the only obligations in respect of harassment of Bill 168 are that an employer implement anti-harassment policies and programs, and that s.50 of the Act, which protects employees against reprisals for acting in compliance with the Act, seeking enforcement of the Act, or giving evidence in proceedings under the Act, does not in fact protect employees against reprisals for making a complaint under the anti-harassment policy.
The Board looks at its own historical jurisprudence (pre-Bill 168) finding that harassment wasn't remedial under the Occupational Health and Safety Act, and concludes that, if the government had intended to require employers to keep their workplaces free of harassment, it would have included a provision in the Act saying so expressly.
In other words, by the reasoning of this Board Member, an employer could implement an anti-harassment policy as legally required and then make a practice of immediately firing any employee who makes a complaint under the policy, and this would be perfectly permissible under the Act.
My Thoughts
In my respectful opinion, the obiter on the latter issue is complete and utter nonsense. The OHSA imposes some extremely broad obligations on employers. Many obligations are specific to certain types of physical hazards, which is likely why the OLRB has not traditionally seen harassment as coming within its scope, but many are not. See, for example, s.25(2)(h), that an employer shall "take every precaution reasonable in the circumstances for the protection of the worker".
In the context of the Act prior to Bill 168, it isn't hard to see why harassment might not have often been seen as included: It really wasn't designed with that sort of issue in mind. That being said, in certain exceptional cases, a broader view was taken - for example, Arbitrator Shime's decision in the 2004 Stina grievance against the TTC found a remedy in the OHSA for harassment which caused severe emotional distress. (And if you look through annotated versions of the Act, it looks out of place in the case list: This employee died, that employee died, that employee lost an arm, that employee lost a leg, that employee became depressed. Not to belittle depression - it can indeed be very debilitating - but hazards to mental health clearly aren't easily compared to hazards to physical health.)
What the Board member is forgetting is that, today, there is only one principle of statutory interpretation, which is this: "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."
So, with harassment now having a place on the podium of the OHSA, it does not make sense to continue to read the employer's general obligations to maintain a safe working environment as not including an obligation to maintain an environment which is harassment free. If we interpret the OHSA as it stands now to permit reprisal for complaints made under the mandatory policy, or as not imposing obligations on the employer in respect of the manner in which complaints under the policy are handled, it would completely undermine the purpose of the mandatory policy.
If this interpretation holds the day, then Bill 168 becomes essentially meaningless. It would require employers to incur the expense of developing policies, without contributing to employee protection in any meaningful way.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Monday, November 7, 2011
Another Analysis of "Appropriately Dealt With"
On October 27, I made an entry about a recent Divisional Court case, Trozzi, interpreting s.45.1 of Ontario's Human Rights Code, which permits the Tribunal to dismiss an application the subject matter of which has been "appropriately dealt with" in another proceeding. The Court determined that Ms. Trozzi could not go to the Human Rights Tribunal to fight over a human rights issue that had already been considered and dealt with by the Health Professions Appeal and Review Board.
In that post, I argued that Trozzi may still leave the door open to an argument that the Tribunal is able to hear arguments about matters previously decided by labour arbitrators if they are of the opinion that the arbitrator didn't "appropriately" deal with the subject matter, as happened in the Barker case (which I talked about here in July).
On October 28, as an anonymous commenter on my Oct 27 entry has drawn to my attention, the Supreme Court of Canada released a decision in British Columbia (Workers' Compensation Board) v. Figliola, interpreting an almost identical section, s.27(1)(f), of the British Columbia Human Rights Code, which gives much more material for the discussion.
Figliola suffered a workplace injury which resulted in chronic pain, and British Columbia's WCB had a policy that essentially set out a fixed formula for what people with chronic pain would receive. He argued, among other things, that this policy contravened the Code, and took the argument to a Review Officer, who rejected it. Around this same time, the BC Legislature enacted legislation which removed the Workers' Compensation Appeal Tribunal's jurisdiction to consider human rights issues, which meant that the Review Officer's decision regarding human rights could not be appealed. As a side effect of this, it would have been possible to seek judicial review of the Review Officer's decision in respect of the human rights matter. Figliola decided instead to take the matter to the BC Human Rights Tribunal. The WCB argued that it should dismiss the application because its subject matter had been "appropriately dealt with" in another proceeding, and the Tribunal declined to do so.
The Tribunal's reasoning was premised on a previous BC Court decision interpreting the provision in context of a Barker-type case, where the Tribunal had reviewed an issue previously addressed by a labour arbitrator: The Court had felt that s.27(1)(f) captured the underlying principles of certain common law doctrines against multiple proceedings. The Tribunal, applying the common law tests literally, concluded in Figliola that they weren't strictly met, and therefore declined to exercise its discretion to dismiss the application.
The Supreme Court was unanimous that this was wrong. Capturing the underlying principles does not mean that the test should be applied technically. However, the analysis had an important schism, with a 5/4 split court.
Justice Abella's camp - the majority - argued that the Tribunal's discretion should be interpreted narrowly, requiring deference to other adjudicated decisions and not permitting discretion to hear such matters anyways. They allowed the appeal and dismissed the complaint.
Justice Cromwell's minority, on the other hand, argued that the language confers a wide discretion, and so while the Tribunal failed to answer the question correctly in the first place, the matter should be sent back to them to apply a proper analysis as to whether or not to proceed with the complaint. The implication being, of course, that the Tribunal should still be able to evaluate for itself whether or not the WCB had "appropriately dealt with" the subject matter.
Typically, we wouldn't give too much attention to the dissent. The majority's conclusion is now the state of the law in Canada, binding on everyone except the Supreme Court itself. The dissent is just that - a dissent - and even though it made some very strong criticisms of the majority's reasons for finding a narrow discretion (which essentially turned on the context in which s.27(1)(f) falls), the BCHRT is now stuck with the majority's decision.
The more interesting question is the consequences in Ontario, where we have essentially the exact same legislative provision. One might think that the Supreme Court would find that the same phrase has the same meaning in British Columbia and Ontario - in fact, there's a strong argument to that effect. Yet the reasons underlying the majority's interpretation in British Columbia is significantly based on the subsections surrounding the provision in the B.C. Legislation, which is in fact very different from the surrounding context in Ontario.
Meaning that, if Trozzi or some similar case goes to the Ontario Court of Appeal, it is quite possible that the Court would distinguish Figliola on that basis, and perhaps even conclude, given the strength of the dissent, that the dissent's interpretation of the provision is the one that should be applied to the Ontario language.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
In that post, I argued that Trozzi may still leave the door open to an argument that the Tribunal is able to hear arguments about matters previously decided by labour arbitrators if they are of the opinion that the arbitrator didn't "appropriately" deal with the subject matter, as happened in the Barker case (which I talked about here in July).
On October 28, as an anonymous commenter on my Oct 27 entry has drawn to my attention, the Supreme Court of Canada released a decision in British Columbia (Workers' Compensation Board) v. Figliola, interpreting an almost identical section, s.27(1)(f), of the British Columbia Human Rights Code, which gives much more material for the discussion.
Figliola suffered a workplace injury which resulted in chronic pain, and British Columbia's WCB had a policy that essentially set out a fixed formula for what people with chronic pain would receive. He argued, among other things, that this policy contravened the Code, and took the argument to a Review Officer, who rejected it. Around this same time, the BC Legislature enacted legislation which removed the Workers' Compensation Appeal Tribunal's jurisdiction to consider human rights issues, which meant that the Review Officer's decision regarding human rights could not be appealed. As a side effect of this, it would have been possible to seek judicial review of the Review Officer's decision in respect of the human rights matter. Figliola decided instead to take the matter to the BC Human Rights Tribunal. The WCB argued that it should dismiss the application because its subject matter had been "appropriately dealt with" in another proceeding, and the Tribunal declined to do so.
The Tribunal's reasoning was premised on a previous BC Court decision interpreting the provision in context of a Barker-type case, where the Tribunal had reviewed an issue previously addressed by a labour arbitrator: The Court had felt that s.27(1)(f) captured the underlying principles of certain common law doctrines against multiple proceedings. The Tribunal, applying the common law tests literally, concluded in Figliola that they weren't strictly met, and therefore declined to exercise its discretion to dismiss the application.
The Supreme Court was unanimous that this was wrong. Capturing the underlying principles does not mean that the test should be applied technically. However, the analysis had an important schism, with a 5/4 split court.
Justice Abella's camp - the majority - argued that the Tribunal's discretion should be interpreted narrowly, requiring deference to other adjudicated decisions and not permitting discretion to hear such matters anyways. They allowed the appeal and dismissed the complaint.
Justice Cromwell's minority, on the other hand, argued that the language confers a wide discretion, and so while the Tribunal failed to answer the question correctly in the first place, the matter should be sent back to them to apply a proper analysis as to whether or not to proceed with the complaint. The implication being, of course, that the Tribunal should still be able to evaluate for itself whether or not the WCB had "appropriately dealt with" the subject matter.
Typically, we wouldn't give too much attention to the dissent. The majority's conclusion is now the state of the law in Canada, binding on everyone except the Supreme Court itself. The dissent is just that - a dissent - and even though it made some very strong criticisms of the majority's reasons for finding a narrow discretion (which essentially turned on the context in which s.27(1)(f) falls), the BCHRT is now stuck with the majority's decision.
The more interesting question is the consequences in Ontario, where we have essentially the exact same legislative provision. One might think that the Supreme Court would find that the same phrase has the same meaning in British Columbia and Ontario - in fact, there's a strong argument to that effect. Yet the reasons underlying the majority's interpretation in British Columbia is significantly based on the subsections surrounding the provision in the B.C. Legislation, which is in fact very different from the surrounding context in Ontario.
Meaning that, if Trozzi or some similar case goes to the Ontario Court of Appeal, it is quite possible that the Court would distinguish Figliola on that basis, and perhaps even conclude, given the strength of the dissent, that the dissent's interpretation of the provision is the one that should be applied to the Ontario language.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Monday, October 31, 2011
Supreme Court of Canada Addresses Costs at Canadian Human Rights Tribunal
I recently made a post addressing some of the challenges of the human rights system. One of the observations I made is that, with many legitimate claims resulting in entitlements in the 4-digit range, forcing complainants to go to Court for their entitlements would be tragic because of the legal costs of doing so.
A recent decision of the Supreme Court of Canada, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) illustrates that the same tragedy can result at administrative tribunals where complainants are provided with inadequate systemic assistance and required to retain their own lawyers: In 2003, the Canadian Human Rights Commission decided to restrict the advocacy assistance it provided to complainants. As a consequence, it seems, Donna Mowat was required to incur her own legal fees in pursuing her complaint before the Canadian Human Rights Tribunal following sexual harassment and release from her employment with the Canadian Forces.
Following a six-week hearing in 2005, the Tribunal found that she had been sexually harassed and the CF's response had not been adequate, but dismissed the rest of her complaint. Ms. Mowat was awarded $4000. She asked for costs, noting that her legal fees were nearly $200,000. (A six week hearing is exceptional, and speaks to the complexity of the matters in issue, and legal fees of that order do not seem unusual for such a protracted hearing, though the Tribunal was critical of the "lack of precision" in identifying the key issues, which is surprising for a represented litigant.) Noting the concern that, without a costs order, her victory would be "pyrrhic", the Tribunal looked to its broad jurisdiction to compensate a victim and make her whole, and awarded $47,000 in costs. The Supreme Court of Canada eventually (recently) concluded that the Tribunal had been wrong to interpret its powers thus, and found that the Canadian Human Rights Act did not empower the Tribunal to award costs: Costs, in law, are treated differently from compensatory damages, and so the Tribunal's compensatory powers did not include the power to award costs.
While there's a certain controversy and imbalance to Ontario's new approach, having free legal assistance available to applicants, there is a good argument to be made that it is preferable to this alternative, where a human rights remedy is going to usually cost more to obtain than it is worth.
A recent decision of the Supreme Court of Canada, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) illustrates that the same tragedy can result at administrative tribunals where complainants are provided with inadequate systemic assistance and required to retain their own lawyers: In 2003, the Canadian Human Rights Commission decided to restrict the advocacy assistance it provided to complainants. As a consequence, it seems, Donna Mowat was required to incur her own legal fees in pursuing her complaint before the Canadian Human Rights Tribunal following sexual harassment and release from her employment with the Canadian Forces.
Following a six-week hearing in 2005, the Tribunal found that she had been sexually harassed and the CF's response had not been adequate, but dismissed the rest of her complaint. Ms. Mowat was awarded $4000. She asked for costs, noting that her legal fees were nearly $200,000. (A six week hearing is exceptional, and speaks to the complexity of the matters in issue, and legal fees of that order do not seem unusual for such a protracted hearing, though the Tribunal was critical of the "lack of precision" in identifying the key issues, which is surprising for a represented litigant.) Noting the concern that, without a costs order, her victory would be "pyrrhic", the Tribunal looked to its broad jurisdiction to compensate a victim and make her whole, and awarded $47,000 in costs. The Supreme Court of Canada eventually (recently) concluded that the Tribunal had been wrong to interpret its powers thus, and found that the Canadian Human Rights Act did not empower the Tribunal to award costs: Costs, in law, are treated differently from compensatory damages, and so the Tribunal's compensatory powers did not include the power to award costs.
While there's a certain controversy and imbalance to Ontario's new approach, having free legal assistance available to applicants, there is a good argument to be made that it is preferable to this alternative, where a human rights remedy is going to usually cost more to obtain than it is worth.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, October 27, 2011
The First of the s.45.1 Cases
I have previously expressed concerns with the Human Rights Tribunal of Ontario's various applications of s.45.1 of the Human Rights Code. This section allows the HRTO to dismiss an application if the subject matter of the application has been "appropriately dealt with" in another proceeding. In the linked post, I noted a case in which the Human Rights Tribunal refused to dismiss an application on this ground because it disagreed with the analysis that Arbitrator Surdykowski used in reaching it.
The Divisional Court just released a decision in College of Nurses v. Trozzi on a similar issue. Trozzi sought a nursing license from College of Nurses. The College imposed conditions on the license on the basis of certain medical conditions she had, and she challenged the decision at the Health Professions Appeal and Review Board (HPARB). She lost.
While waiting for the decision from the HPARB, she initiated a Human Rights Application, and the College sought dismissal under s.45.1. The Tribunal found that the HPARB had failed to apply the correct analysis to the question. The College sought judicial review.
That the Divisional Court even heard the application for judicial review at this stage is surprising - the Tribunal proceeding is ongoing, and normally this would be regarded as "premature". But as it went to a "true" jurisdictional question, the Court refused to quash the application for judicial review.
The Divisional Court unanimously allowed the application for judicial review, but there were different sets of reasons. The majority felt that the HRTO overstepped its bounds by attempting to sit in review of another statutory Tribunal with a "public protection mandate". Justice Lederer, by contrast, felt that the distinction of "public protection mandate" is somewhat meaningless, and that the Tribunal overstepped its bounds simply by trying to sit in review of another statutory Tribunal at all.
I don't think that this is the last s.45.1 case we're going to see, but the Divisional Court appears to be putting the HRTO in its place pretty firmly.
The Divisional Court just released a decision in College of Nurses v. Trozzi on a similar issue. Trozzi sought a nursing license from College of Nurses. The College imposed conditions on the license on the basis of certain medical conditions she had, and she challenged the decision at the Health Professions Appeal and Review Board (HPARB). She lost.
While waiting for the decision from the HPARB, she initiated a Human Rights Application, and the College sought dismissal under s.45.1. The Tribunal found that the HPARB had failed to apply the correct analysis to the question. The College sought judicial review.
That the Divisional Court even heard the application for judicial review at this stage is surprising - the Tribunal proceeding is ongoing, and normally this would be regarded as "premature". But as it went to a "true" jurisdictional question, the Court refused to quash the application for judicial review.
The Divisional Court unanimously allowed the application for judicial review, but there were different sets of reasons. The majority felt that the HRTO overstepped its bounds by attempting to sit in review of another statutory Tribunal with a "public protection mandate". Justice Lederer, by contrast, felt that the distinction of "public protection mandate" is somewhat meaningless, and that the Tribunal overstepped its bounds simply by trying to sit in review of another statutory Tribunal at all.
I don't think that this is the last s.45.1 case we're going to see, but the Divisional Court appears to be putting the HRTO in its place pretty firmly.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wednesday, October 26, 2011
The Challenges of Human Rights
I've tried to write a policy-oriented human-rights entry a couple of times, and abandoned the attempts before. The challenge is that I really am a centrist in this area. Unlike many on the right, I believe in human rights. I think that they are important to a fair and democratic society, and that their growth is a very positive thing for Canada. However, unlike many on the left, I do understand the objections to an overly broad approach to human rights. So I'm trying to strike a delicate balance.
The "Human Rights Have Gone Too Far" Camp
On the one hand, let's look at the far-right, such as polemicist Ezra Levant, who argues that the 'human rights commissions' are out of control. It's difficult to completely ignore the imprecision and overbreadth in Levant's language: He generalizes human rights on the national stage based on his experience with the Alberta Human Rights Commission, and there are some very significant differences between systems, relevant to his objections. He argues that Human Rights Commissions and Tribunals are "kangaroo courts", with unqualified adjudicators appointed by the government. He also uses criminal language - referring to the initiation of the proceeding as being a 'charge', referring to the proceedings as 'prosecutions', findings of Code breaches as 'convictions', and awards of compensatory damages as 'fines' - all of which is incorrect and misleading, in an attempt to set up an argument that the government should bow out of these essentially civil disputes and let the Courts handle it.
There are no fewer than four massive problems with Levant's position that the Human Rights Commissions and Tribunals are unqualified bureaucrats expanding the interpretation of human rights unduly beyond what it can reasonably bear.
(1) These are administrative tribunals. I've blogged about administrative tribunals on several prior occasions, and the key thing here is that they are *everywhere*. There are literally hundreds of them across the country, of different shapes and sizes, specifically designed to address certain types of disputes. The point is to take the strain off of Courts, and provide a - hopefully - expedient avenue of recourse for these disputes. Not to suggest that these processes are perfect - far from it - but neither are the Courts, and in specific contexts the flaws of administrative tribunals are preferable to the flaws of the Courts. Many lawyers dislike administrative tribunals generally. The objections Levant raises are common to many of these tribunals, but he treats the human rights processes as being uniquely appalling, and even has a prominent link on his web site seeking "donations" for his ongoing campaign against "the HRC". And Levant's solution of handing off human rights disputes to the Courts would be catastrophic: The vast majority of legitimate human rights complaints result in awards in the four-digit range or the low five-digit range. The existence of such civil claims often create a tragic hole in the 'access to justice' coverage, because even a plaintiff who can afford to pay a lawyer to bring such a claim...won't and shouldn't, because they'll pay more to the lawyer than the claim is worth.
(2) Human rights proceedings are almost always civil disputes between private parties. The implication of 'prosecution' is that the 'bureaucrats' are starting these proceedings of their own initiative. That is very seldom the case. In most cases, the proceedings are initiated by people who feel that their rights under the Code have been violated; the mandate of the Human Rights Tribunals is to adjudicate these disputes. This is not unlike the Landlord Tenant Board, adjudicating disputes between residential tenants and landlords.
(3) Human Rights Tribunals are subject to judicial oversight. If the Tribunal committed a reviewable error, including misinterpretation of the Code, then judicial review can be sought. All Tribunals and Courts make mistakes from time to time, and so, outside of the Supreme Court of Canada, no judicial or quasi-judicial body is completely immune from appellate/judicial review. (Some would argue that the expense of this is prohibitive. Yes, Court is expensive. That's a big reason we have the Tribunal in the first place. Moreover, once you get to that level, one of Levant's key objections to the tribunal process, being the unavailability of cost sanctions, dissolves.)
(4) Human rights do not exist at common law. The judges I've talked to about the topic don't want jurisdiction to handle human rights disputes. At the ground level, these are tricky issues, requiring expertise in terms of how the relationships triggering human rights disputes work. This is why we don't use judges to adjudicate these decisions, but lawyers and other professionals experienced in labour relations and other Code-related areas. Indeed, the Commissions and Tribunals simply interpret what the government enacts. The government is free, subject to constitutional constraints, to change the language if they feel the intention behind it hasn't been correctly interpreted.
Many of Levant's criticisms are anecdotal in nature, taking examples which are on the fringe. For example, he wrote in November 2010 of a pastor who had been "fined" - not so, it was a compensatory award to a complainant - for writing a letter to the editor "criticizing gay marriage" (which is a *very* mild way of characterizing the letter's contents). Levant neglected to mention that the Tribunal's decision had, in fact, been reversed on judicial review, highlighting that it was, in fact, a borderline case.
That being said, I don't necessarily disagree with all of Levant's objections. One of his most persuasive pitches is the one he makes against the anti-hate speech provisions contained in some - that's right, not all - of the human rights statutes in Canada. That doesn't exist in Ontario, so it's not something I've developed a strong feeling about. While I understand the policy motivations behind such a provision, I also understand Levant's objections on the basis of free speech, and I'm inclined to think that such a provision is unworkable. There are clear lines that shouldn't be crossed in criminal legislation, and I think we can leave it there.
It's a shame that this message gets lost when Levant muddies the water with his polemicist rhetoric, crusading with equal vigour against the human rights processes generally and other applications of substantive human rights.
To give a lay perspective, let's look at my father. My father is a retired police officer, and pretty far right, and we have some interesting conversations. I've had clients whose workplaces had pretty flagrant human rights breaches...for example, a woman obligated to wear dresses - not pants - even when men performing similar job functions were fine in ripped jeans...and my dad's viewpoint on these cases is that, if these employees knew about the job conditions before going in, and agree to it, they shouldn't really complain about it afterward. I respond with the question, "Okay, what if somebody agreed to work for $2/hour? Should they not be able to complain about it afterwards?" His response was, "Well, we have minimum wage laws, so that would be illegal." He didn't recognize that human rights and employment standards are similar in the way they legislate over the freedom to contract.
There *are* legitimate human rights issues out there, major issues that the majority of Canadians would agree should be addressed. (Mind you, there are still surprising numbers of people who think that an employer should be able to fire an employee who gets pregnant, judging from public reaction to the Jessica Maciel case.) There are also more marginal issues, that perhaps don't have the same clear-cut answers, such as Bill Cosby's right not to be harassed on the basis of race by Chris Rock at a comedy club. And there are trickier questions as well where human rights obligations may conflict with other legal obligations such as occupational health and safety. (See, for example, the recent decision in Loomba v. Home Depot.)
The Other Side: Human Rights Breaches are Everywhere
I've mentioned Professor David Doorey before, as having a workplace law blog I follow and sometimes comment on. He made a post a while back about the Starbucks employment application breaching the Human Rights Code by asking what high school the applicant attended and whether or not the applicant is available to work overtime.
Let's be clear: There are certain questions which are clearly illegal. Do you have kids? How old are you? Are you married? What are your religious beliefs? You can't ask these of a job applicant. But these questions don't seem so inherently unreasonable.
Ontario Human Rights Commission literature backs him up on the 'high school' question. And the logic seems to be that asking what school a person went to can reveal a great deal about their religious background, racial background, place of origin, etc. The overtime question is seen as troublesome because people who have families are far less likely to be able to work overtime.
I have a hard time accepting such a broad interpretation of the Human Rights Code. The high school question...well, if the fact that a question may reveal factors with a probable connection to a prohibited ground made the question itself illegal, then the result would be that just about any question would be illegal. Heck, the "name" field would likely be illegal. These questions are clearly not proxies to pick up information to classify people on discriminatory grounds. And if Microsoft were unable to distinguish between a Computer Science degree received from the University of Waterloo versus some less prestigious institution, that would strike me as being a commercially absurd result, extended the prohibited grounds to covering "where did you get your education"? (And if an employer wants to see a transcript...well, you can just about forget that, no?)
The overtime question...is trickier. Yes, people with kids are less likely to be able to work overtime. Yes, that ends up being a discriminatory result if people are going to be treated differently on the basis of a "no" answer. Yet the similar extension of this principle would be that it would be illegal to advertise positions for full-time only, or for certain hours. Or to ask how much travel a potential employee is willing to do. Again, where it doesn't seem to me that hours of availability are a clear proxy for a prohibited ground, I think that the commercial absurdity of the result is hard to justify.
Problems of Perception
One further difficulty is that people don't really understand what "human rights" means. Even some very sophisticated people don't understand that it isn't just a venue for dealing with general unfairness. It addresses unfairness on some very specific bases. So people think "If I'm treated unfairly, it's a human rights matter", leading to frivolous and vexatious proceedings, leading to others criticizing the Tribunals for hearing such frivolous matters.
Let's be clear. *Most* human rights applications seem to fall into one of three categories:
(1) Not in the Tribunal's jurisdiction. Whether because not based on a prohibited ground, not in an applicable social category, or because of some other jurisdictional bar, the proceeding gets shut down early because the Tribunal can't hear it.
(2) A case with substantial personal importance and a bona fide human rights-based objection. For instance, consider the mandatory retirement cases. Clearly, there are some circumstances in which mandatory retirement might be justified. That cannot be carte blanche for people to discriminate against the elderly. Thus, a person facing mandatory retirement, win or lose, can't be faulted for arguing the case before the Human Rights Tribunal.
(3) A case with deeply unacceptable conduct by the respondent, if perhaps not a great deal of direct personal importance. A good friend of mine and law school classmate is visually impaired, and uses a service animal. (The dog has quite the character, too. Very quiet, never made much noise or disrupt classes, but would occasionally snore or snort at times that were very appropriate to the lecture material.) I noticed a case a while back in the Tribunal's jurisprudence involving her being excluded from a store because of a "no animals" policy. I doubt my friend was put to great hardship by the exclusion - no doubt she took her business somewhere else. Yet I don't think she's seeking a big payout - really, if you look at the value of her time on an hourly basis, the award she'll probably get from the Tribunal at the end of the process will be less for her time than she could have billed on client matters. It's the principle of the thing, and it's an important principle. Most establishments permit service animals simply because it is a well-known law that they are obligated to. If we didn't hold people to this obligation, then they would stop, and that *would* generate hardship.
While imperfect, as are all things human, the Human Rights Tribunals serve important policy objectives. We need to scrutinize them, and decide carefully the form and substance of our human rights, but abandoning them would be a tragic mistake.
The "Human Rights Have Gone Too Far" Camp
On the one hand, let's look at the far-right, such as polemicist Ezra Levant, who argues that the 'human rights commissions' are out of control. It's difficult to completely ignore the imprecision and overbreadth in Levant's language: He generalizes human rights on the national stage based on his experience with the Alberta Human Rights Commission, and there are some very significant differences between systems, relevant to his objections. He argues that Human Rights Commissions and Tribunals are "kangaroo courts", with unqualified adjudicators appointed by the government. He also uses criminal language - referring to the initiation of the proceeding as being a 'charge', referring to the proceedings as 'prosecutions', findings of Code breaches as 'convictions', and awards of compensatory damages as 'fines' - all of which is incorrect and misleading, in an attempt to set up an argument that the government should bow out of these essentially civil disputes and let the Courts handle it.
There are no fewer than four massive problems with Levant's position that the Human Rights Commissions and Tribunals are unqualified bureaucrats expanding the interpretation of human rights unduly beyond what it can reasonably bear.
(1) These are administrative tribunals. I've blogged about administrative tribunals on several prior occasions, and the key thing here is that they are *everywhere*. There are literally hundreds of them across the country, of different shapes and sizes, specifically designed to address certain types of disputes. The point is to take the strain off of Courts, and provide a - hopefully - expedient avenue of recourse for these disputes. Not to suggest that these processes are perfect - far from it - but neither are the Courts, and in specific contexts the flaws of administrative tribunals are preferable to the flaws of the Courts. Many lawyers dislike administrative tribunals generally. The objections Levant raises are common to many of these tribunals, but he treats the human rights processes as being uniquely appalling, and even has a prominent link on his web site seeking "donations" for his ongoing campaign against "the HRC". And Levant's solution of handing off human rights disputes to the Courts would be catastrophic: The vast majority of legitimate human rights complaints result in awards in the four-digit range or the low five-digit range. The existence of such civil claims often create a tragic hole in the 'access to justice' coverage, because even a plaintiff who can afford to pay a lawyer to bring such a claim...won't and shouldn't, because they'll pay more to the lawyer than the claim is worth.
(2) Human rights proceedings are almost always civil disputes between private parties. The implication of 'prosecution' is that the 'bureaucrats' are starting these proceedings of their own initiative. That is very seldom the case. In most cases, the proceedings are initiated by people who feel that their rights under the Code have been violated; the mandate of the Human Rights Tribunals is to adjudicate these disputes. This is not unlike the Landlord Tenant Board, adjudicating disputes between residential tenants and landlords.
(3) Human Rights Tribunals are subject to judicial oversight. If the Tribunal committed a reviewable error, including misinterpretation of the Code, then judicial review can be sought. All Tribunals and Courts make mistakes from time to time, and so, outside of the Supreme Court of Canada, no judicial or quasi-judicial body is completely immune from appellate/judicial review. (Some would argue that the expense of this is prohibitive. Yes, Court is expensive. That's a big reason we have the Tribunal in the first place. Moreover, once you get to that level, one of Levant's key objections to the tribunal process, being the unavailability of cost sanctions, dissolves.)
(4) Human rights do not exist at common law. The judges I've talked to about the topic don't want jurisdiction to handle human rights disputes. At the ground level, these are tricky issues, requiring expertise in terms of how the relationships triggering human rights disputes work. This is why we don't use judges to adjudicate these decisions, but lawyers and other professionals experienced in labour relations and other Code-related areas. Indeed, the Commissions and Tribunals simply interpret what the government enacts. The government is free, subject to constitutional constraints, to change the language if they feel the intention behind it hasn't been correctly interpreted.
Many of Levant's criticisms are anecdotal in nature, taking examples which are on the fringe. For example, he wrote in November 2010 of a pastor who had been "fined" - not so, it was a compensatory award to a complainant - for writing a letter to the editor "criticizing gay marriage" (which is a *very* mild way of characterizing the letter's contents). Levant neglected to mention that the Tribunal's decision had, in fact, been reversed on judicial review, highlighting that it was, in fact, a borderline case.
That being said, I don't necessarily disagree with all of Levant's objections. One of his most persuasive pitches is the one he makes against the anti-hate speech provisions contained in some - that's right, not all - of the human rights statutes in Canada. That doesn't exist in Ontario, so it's not something I've developed a strong feeling about. While I understand the policy motivations behind such a provision, I also understand Levant's objections on the basis of free speech, and I'm inclined to think that such a provision is unworkable. There are clear lines that shouldn't be crossed in criminal legislation, and I think we can leave it there.
It's a shame that this message gets lost when Levant muddies the water with his polemicist rhetoric, crusading with equal vigour against the human rights processes generally and other applications of substantive human rights.
To give a lay perspective, let's look at my father. My father is a retired police officer, and pretty far right, and we have some interesting conversations. I've had clients whose workplaces had pretty flagrant human rights breaches...for example, a woman obligated to wear dresses - not pants - even when men performing similar job functions were fine in ripped jeans...and my dad's viewpoint on these cases is that, if these employees knew about the job conditions before going in, and agree to it, they shouldn't really complain about it afterward. I respond with the question, "Okay, what if somebody agreed to work for $2/hour? Should they not be able to complain about it afterwards?" His response was, "Well, we have minimum wage laws, so that would be illegal." He didn't recognize that human rights and employment standards are similar in the way they legislate over the freedom to contract.
There *are* legitimate human rights issues out there, major issues that the majority of Canadians would agree should be addressed. (Mind you, there are still surprising numbers of people who think that an employer should be able to fire an employee who gets pregnant, judging from public reaction to the Jessica Maciel case.) There are also more marginal issues, that perhaps don't have the same clear-cut answers, such as Bill Cosby's right not to be harassed on the basis of race by Chris Rock at a comedy club. And there are trickier questions as well where human rights obligations may conflict with other legal obligations such as occupational health and safety. (See, for example, the recent decision in Loomba v. Home Depot.)
The Other Side: Human Rights Breaches are Everywhere
I've mentioned Professor David Doorey before, as having a workplace law blog I follow and sometimes comment on. He made a post a while back about the Starbucks employment application breaching the Human Rights Code by asking what high school the applicant attended and whether or not the applicant is available to work overtime.
Let's be clear: There are certain questions which are clearly illegal. Do you have kids? How old are you? Are you married? What are your religious beliefs? You can't ask these of a job applicant. But these questions don't seem so inherently unreasonable.
Ontario Human Rights Commission literature backs him up on the 'high school' question. And the logic seems to be that asking what school a person went to can reveal a great deal about their religious background, racial background, place of origin, etc. The overtime question is seen as troublesome because people who have families are far less likely to be able to work overtime.
I have a hard time accepting such a broad interpretation of the Human Rights Code. The high school question...well, if the fact that a question may reveal factors with a probable connection to a prohibited ground made the question itself illegal, then the result would be that just about any question would be illegal. Heck, the "name" field would likely be illegal. These questions are clearly not proxies to pick up information to classify people on discriminatory grounds. And if Microsoft were unable to distinguish between a Computer Science degree received from the University of Waterloo versus some less prestigious institution, that would strike me as being a commercially absurd result, extended the prohibited grounds to covering "where did you get your education"? (And if an employer wants to see a transcript...well, you can just about forget that, no?)
The overtime question...is trickier. Yes, people with kids are less likely to be able to work overtime. Yes, that ends up being a discriminatory result if people are going to be treated differently on the basis of a "no" answer. Yet the similar extension of this principle would be that it would be illegal to advertise positions for full-time only, or for certain hours. Or to ask how much travel a potential employee is willing to do. Again, where it doesn't seem to me that hours of availability are a clear proxy for a prohibited ground, I think that the commercial absurdity of the result is hard to justify.
Problems of Perception
One further difficulty is that people don't really understand what "human rights" means. Even some very sophisticated people don't understand that it isn't just a venue for dealing with general unfairness. It addresses unfairness on some very specific bases. So people think "If I'm treated unfairly, it's a human rights matter", leading to frivolous and vexatious proceedings, leading to others criticizing the Tribunals for hearing such frivolous matters.
Let's be clear. *Most* human rights applications seem to fall into one of three categories:
(1) Not in the Tribunal's jurisdiction. Whether because not based on a prohibited ground, not in an applicable social category, or because of some other jurisdictional bar, the proceeding gets shut down early because the Tribunal can't hear it.
(2) A case with substantial personal importance and a bona fide human rights-based objection. For instance, consider the mandatory retirement cases. Clearly, there are some circumstances in which mandatory retirement might be justified. That cannot be carte blanche for people to discriminate against the elderly. Thus, a person facing mandatory retirement, win or lose, can't be faulted for arguing the case before the Human Rights Tribunal.
(3) A case with deeply unacceptable conduct by the respondent, if perhaps not a great deal of direct personal importance. A good friend of mine and law school classmate is visually impaired, and uses a service animal. (The dog has quite the character, too. Very quiet, never made much noise or disrupt classes, but would occasionally snore or snort at times that were very appropriate to the lecture material.) I noticed a case a while back in the Tribunal's jurisprudence involving her being excluded from a store because of a "no animals" policy. I doubt my friend was put to great hardship by the exclusion - no doubt she took her business somewhere else. Yet I don't think she's seeking a big payout - really, if you look at the value of her time on an hourly basis, the award she'll probably get from the Tribunal at the end of the process will be less for her time than she could have billed on client matters. It's the principle of the thing, and it's an important principle. Most establishments permit service animals simply because it is a well-known law that they are obligated to. If we didn't hold people to this obligation, then they would stop, and that *would* generate hardship.
While imperfect, as are all things human, the Human Rights Tribunals serve important policy objectives. We need to scrutinize them, and decide carefully the form and substance of our human rights, but abandoning them would be a tragic mistake.
*****
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, October 21, 2011
Bank Manager not really a "Manager"
The majority of my blog entries revolve around Provincially-regulated matters. You often see me discussing the effects of Ontario employment statutes. Yet that isn't the only legal regime at work in Ontario. A handful of industries are Federally regulated instead, such as banking, telecommunications, and interprovincial transportation. (Federal government employees are also, naturally, Federally regulated, but they fall into a different framework from most private sector employees as well. I have enough experience with Federally regulated employees - both private and public sector - to be comfortable with the frameworks, but they are quite complicated.)
The Canada Labour Code is a rather massive labour/employment statute in the Federal sphere, covering similar subject matter to several Ontario statutes (such as employment standards, labour relations, and occupational health and safety).
But there is one rather unique feature of the Canada Labour Code, found in Division XIV (Unjust Dismissal): With certain limitations, non-unionized employees can seek reinstatement to their positions when unfairly dismissed. There is no Provincial equivalent. (Rather, reinstatement in the Provincial non-union context is a remedy restricted to very select circumstances to illegal - not just unfair - reasons for terminations.)
Division XIV has its own complaint process, that people can use instead of Court. (Court proceedings are still available to non-union employees, and the same common law principles apply as in the Provincial context. But you can't get reinstatement that way.)
There are several prerequisites to getting into the Division XIV adjudication:
(1) You work for a Federally regulated undertaking;
(2) You are not a member of a bargaining unit (i.e. unionized);
(3) You have been terminated after more than 12 months of service;
(4) There is not another recourse mechanism in another Act of Parliament (as there would be for, say, public sector employees);
(5) The termination was for reasons other than a shortage of work or discontinuance of the job function; and
(6) You are not a "manager".
The first five are pretty straightforward, but the sixth is trickier, for several reasons. Firstly, the exception isn't built into Division XIV, but is in a different part of the Code. (To put this in context, Division XIV starts at s.240; the managerial exception is buried in s.167.) This makes it easily missed by people who are not familiar with the Code. Another difficulty is that "manager" is not actually defined in the Code.
This brings us to a recent decision in Roda v. Bank of Montreal, by Referee John Stout, in a matter referred to adjudication under Division XIV. Mr. Roda was a branch manager at a BMO branch, and was dismissed. He brought a complaint under Division XIV, and BMO argued that, as a manager, Division XIV recourse was not available to him. So Referee Stout had to decide whether or not he had jurisdiction to hear the case on its merits, determining whether or not Mr. Roda was a "manager" within the meaning of the Canada Labour Code. In a detailed analysis, he concluded that Mr. Roda's decision-making powers and any discretion he had were very limited, and he was kept on a tight leash by the bank, and accordingly was not really a "manager" despite his title.
If this decision holds up, it is likely to have repercussions across the banking industry. There are a number of prominent judicial decisions involving dismissal of bank managers, and in my own practice I have dealt with dismissed bank managers from time to time as well. From my observations, there doesn't seem to be a great deal of variation in how the big banks treat their managers, neither in the length of the leash nor the tendency to hold the branch manager accountable for anything that goes wrong nonetheless. Accordingly, most (though not all) terminations of branch managers are based on allegations of cause, which occasionally get upheld in Court. In most cases, the worst case scenario for the bank is that it may be required to provide pay in lieu of notice. However, this decision could curtail the bank's right to terminate managers on a not-for-cause basis, with the result that most dismissed branch managers will be entitled to seek a reinstatement remedy.
*****
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, October 11, 2011
How to Get Rid of a Union in Ontario
I recently involved myself in a debate on Professor David Doorey's blog about 'democracy' in labour relations. I've followed his blog for some time, and I respect (though I often disagree with) his views, which are typically 'pro-union'. My own view on unions is quite nuanced: Unlike many lawyers who represent management, I don't oppose unions on principle. I've seen employers who remind me of the reason why unions exist. But I have had many occasions to question the activities of specific unions in specific contexts.
I believe that there are major problems with the current structure of our labour relations regime in Ontario, mainly because I believe that "labour" itself has become an entity with its own interests, and a powerful one at that. Rather than, as I believe should be the case, an advocacy mechanism for workers. The end result is that there are times when a union puts its own interests above those of individuals it represents, or even above entire bargaining units under its care.
So we frequently see cases in the jurisprudence involving employees trying to sidestep the union to deal with their employer (almost always unsuccessful, except in the Human Rights arena, where it *can* work), or taking on the union directly in a Duty of Fair Representation application (almost always unsuccessful, because there's a high threshold for it), and I have had plenty of employees call me directly because they aren't happy with the way that their unions are representing their interests. (Think about how big a deal that is: You've already paid union dues. You're not getting them back. Included in union dues is representation as against your employer. How dissatisfied would you have to be before you would hire your own lawyer at your own expense, paying hundreds of dollars per hour, to do something you've already paid somebody else to do?) The trouble is that there is seldom much to be done; under the statute, the union has the exclusive mandate to represent them, and they can't opt out of this.
Professor Doorey sees it thus: The bargaining unit, if displeased with the union, can get rid of the union. This is true. But it seldom happens, because bargaining unit members usually don't have the sophistication or resources to successfully decertify a union, and any employer involvement or assistance will usually be fatal to the effort. The rules governing decertification are actually fairly complicated.
So, for those employees who want to decertify a union, here's a general guide as to how. Remember that every case is unique in its own way, and the best way to move forward, if you can afford to, is to hire a qualified lawyer to assist you. The below is not legal advice, and does not cover every scenario. Especially note that the process is different for construction industry matters.
Step 1: Determine if you can bring the Application
The general rule is that you have to be a member of the bargaining unit in order to apply for termination of bargaining rights, and that any member of the bargaining unit can do so. However, the application can't be tainted by management influence, and there have been cases in which unions have argued that the person making the application was too closely connected to the managerial team.
Step 2: Find the Window
The Labour Relations Act sets out a variety of different circumstances in which you cannot make an application to terminate your union's bargaining rights.
The Application can be made under the following circumstances:
Let's say that my union and employer commenced a collective agreement with a 24-month term, starting May 1st 2011 and ending April 30th 2013. If I want to decertify the union, the window opens on February 1st, 2013 (three months before the end), and closes when a new collective agreement becomes effective. So if the employer and union are able to negotiate a new agreement to start for May 1st, 2013, I need to have my application in before then.
Or suppose my union and employer negotiate a long-term collective agreement, going from September 1st 2011 to August 31st 2016 (five years). I would then have three month windows at the end of the third, fourth, and fifth years of operation. (Window from June 1st to August 31st of 2014 and 2015, and then a window opening June 1st 2016 that ends when a new collective agreement becomes effective.)
One of many important things to remember is that, if the bargaining unit ratifies a new collective agreement, you're probably s.o.l. for a long time if you want to get the union out. When most employees treat a new collective agreement as being inevitable, and a question of how long it will take and what actions (i.e. strikes) may be required to get a better deal, that's a problem; people are likely to vote in favour of a tentative agreement so long as it is tolerable, and this is especially true of those who would rather be without a union in any event.
But there are also bars to initiating an application, even within those windows. There's a conciliation process available to the parties: The union or the employer can ask the Minister to appoint a conciliation officer or mediator, which triggers a bar for a period which essentially allows that process to run its course. In practice, this ends up being a way for the union to extend its protection. So it has one year to get a first collective agreement, and if it fails to do so, it asks the Minister to appoint a conciliation officer or mediator. Then, once that process runs its course, the bar is extended for a certain period of time beyond. Similar principles apply when subsequently renegotiating expiring collective agreements - conciliation bars an application after the expiration of the existing collective agreement.
If a strike or lock-out begins, that also creates a bar - essentially, if the bargaining unit gives the union the go-ahead for a strike, they have to give the union at least 6 months to try to accomplish its objectives.
One of the major practical challenges for an employee trying to decertify a union surrounds the whole 'conciliation' concept. How do you find out if the union has sought conciliation without asking questions that would tip off the union to your impending application? Ultimately, the best bet for decertifying unions is by making sure the application gets started within those three-month windows, and not waiting for existing collective agreements to expire.
Step 3: Get your "Evidence" together
In order to make an application to terminate bargaining rights, there are going to be two substantive requirements. First, you're going to have to show 'evidence' that at least 40% of the bargaining unit no longer wants to be represented by a union, and then later when a vote occurs at least 50% plus one of the bargaining unit has to vote on your side.
But first things first, so let's look at the evidence. It's best to think of it like a petition. Every page has to show what they're signing, and each name should have the printed name, signature, and date of signature. You also need to provide the OLRB with an alphabetical list of employees corresponding with the evidence filed, and a declaration verifying the evidence (OLRB Form A-80).
Step 4: Serve the Union and Employer and File the Application
Well, first you need to complete all the below documents. That's a given. After you find them all on the OLRB website. Which isn't quite as simple as it should be, but I've tried to simplify it with links to the PDF versions of everything. There are Word versions available, too.
You need to serve a termination package on the union, including the following:
And, on the employer, the following:
Then, within two days, you need to file (by any means except email, fax, or registered mail) with the OLRB the following:
See? Couldn't be simpler.
Step 5: Win the Vote
There are limits to what you are allowed to do in campaigning. Threatening, intimidation, etc., these tactics aren't kosher. But as a member of the bargaining unit, your speech isn't nearly as restricted as the employer's speech in terms of trying to persuade your fellow workers that the union isn't in their best interests. Remember that this is your campaign; the employer is barely more than a bystander, and can't do much to help you. And if they offer assistance, you should say no, or risk compromising the application.
*****
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 author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.
I believe that there are major problems with the current structure of our labour relations regime in Ontario, mainly because I believe that "labour" itself has become an entity with its own interests, and a powerful one at that. Rather than, as I believe should be the case, an advocacy mechanism for workers. The end result is that there are times when a union puts its own interests above those of individuals it represents, or even above entire bargaining units under its care.
So we frequently see cases in the jurisprudence involving employees trying to sidestep the union to deal with their employer (almost always unsuccessful, except in the Human Rights arena, where it *can* work), or taking on the union directly in a Duty of Fair Representation application (almost always unsuccessful, because there's a high threshold for it), and I have had plenty of employees call me directly because they aren't happy with the way that their unions are representing their interests. (Think about how big a deal that is: You've already paid union dues. You're not getting them back. Included in union dues is representation as against your employer. How dissatisfied would you have to be before you would hire your own lawyer at your own expense, paying hundreds of dollars per hour, to do something you've already paid somebody else to do?) The trouble is that there is seldom much to be done; under the statute, the union has the exclusive mandate to represent them, and they can't opt out of this.
Professor Doorey sees it thus: The bargaining unit, if displeased with the union, can get rid of the union. This is true. But it seldom happens, because bargaining unit members usually don't have the sophistication or resources to successfully decertify a union, and any employer involvement or assistance will usually be fatal to the effort. The rules governing decertification are actually fairly complicated.
So, for those employees who want to decertify a union, here's a general guide as to how. Remember that every case is unique in its own way, and the best way to move forward, if you can afford to, is to hire a qualified lawyer to assist you. The below is not legal advice, and does not cover every scenario. Especially note that the process is different for construction industry matters.
Step 1: Determine if you can bring the Application
The general rule is that you have to be a member of the bargaining unit in order to apply for termination of bargaining rights, and that any member of the bargaining unit can do so. However, the application can't be tainted by management influence, and there have been cases in which unions have argued that the person making the application was too closely connected to the managerial team.
Step 2: Find the Window
The Labour Relations Act sets out a variety of different circumstances in which you cannot make an application to terminate your union's bargaining rights.
The Application can be made under the following circumstances:
- If more than a year has passed since the union was certified, and no collective agreement has been reached;
- If a collective agreement exists and has a term of three years or less, then after the start of the last three months of its operation (and before a new collective agreement commences or a renewal of the agreement is effective);
- If a collective agreement exists and has a term of more than three years, then between the start of the 34th month and the start of the 37th month of its operation, then for the last three months of each year of its operation thereafter (and for the last three months of its operation before it expires).
Let's say that my union and employer commenced a collective agreement with a 24-month term, starting May 1st 2011 and ending April 30th 2013. If I want to decertify the union, the window opens on February 1st, 2013 (three months before the end), and closes when a new collective agreement becomes effective. So if the employer and union are able to negotiate a new agreement to start for May 1st, 2013, I need to have my application in before then.
Or suppose my union and employer negotiate a long-term collective agreement, going from September 1st 2011 to August 31st 2016 (five years). I would then have three month windows at the end of the third, fourth, and fifth years of operation. (Window from June 1st to August 31st of 2014 and 2015, and then a window opening June 1st 2016 that ends when a new collective agreement becomes effective.)
One of many important things to remember is that, if the bargaining unit ratifies a new collective agreement, you're probably s.o.l. for a long time if you want to get the union out. When most employees treat a new collective agreement as being inevitable, and a question of how long it will take and what actions (i.e. strikes) may be required to get a better deal, that's a problem; people are likely to vote in favour of a tentative agreement so long as it is tolerable, and this is especially true of those who would rather be without a union in any event.
But there are also bars to initiating an application, even within those windows. There's a conciliation process available to the parties: The union or the employer can ask the Minister to appoint a conciliation officer or mediator, which triggers a bar for a period which essentially allows that process to run its course. In practice, this ends up being a way for the union to extend its protection. So it has one year to get a first collective agreement, and if it fails to do so, it asks the Minister to appoint a conciliation officer or mediator. Then, once that process runs its course, the bar is extended for a certain period of time beyond. Similar principles apply when subsequently renegotiating expiring collective agreements - conciliation bars an application after the expiration of the existing collective agreement.
If a strike or lock-out begins, that also creates a bar - essentially, if the bargaining unit gives the union the go-ahead for a strike, they have to give the union at least 6 months to try to accomplish its objectives.
One of the major practical challenges for an employee trying to decertify a union surrounds the whole 'conciliation' concept. How do you find out if the union has sought conciliation without asking questions that would tip off the union to your impending application? Ultimately, the best bet for decertifying unions is by making sure the application gets started within those three-month windows, and not waiting for existing collective agreements to expire.
Step 3: Get your "Evidence" together
In order to make an application to terminate bargaining rights, there are going to be two substantive requirements. First, you're going to have to show 'evidence' that at least 40% of the bargaining unit no longer wants to be represented by a union, and then later when a vote occurs at least 50% plus one of the bargaining unit has to vote on your side.
But first things first, so let's look at the evidence. It's best to think of it like a petition. Every page has to show what they're signing, and each name should have the printed name, signature, and date of signature. You also need to provide the OLRB with an alphabetical list of employees corresponding with the evidence filed, and a declaration verifying the evidence (OLRB Form A-80).
Step 4: Serve the Union and Employer and File the Application
Well, first you need to complete all the below documents. That's a given. After you find them all on the OLRB website. Which isn't quite as simple as it should be, but I've tried to simplify it with links to the PDF versions of everything. There are Word versions available, too.
You need to serve a termination package on the union, including the following:
- OLRB Form C-3, completed with the union's name and the date in the appropriate fields (the full name of the form is Notice to Union of Application for Termination of Bargaining Rights Under Section 63 of the Act...don't you love pithy names?);
- A completed copy of Form A-6 (Application for Termination of Bargaining Rights Under Section 63 of the Act);
- A blank copy of Form A-7 (Response to Application for Termination of Bargaining Rights Under Section 63 of the Act);
- A copy of Information Bulletin 2 (which is where this list is found, incidentally);
- A copy of Information Bulletin 3;
- A copy of Information Bulletin 5; and
- A copy of Part III of the Board's Rules of Procedure.
And, on the employer, the following:
- Form C-4;
- The same Form A-6 as above;
- A blank Form A-8;
- A blank Schedule C (List of Employees)
- A copy of Information Bulletin 2 (which is where this list is found, incidentally);
- A copy of Information Bulletin 3;
- A copy of Information Bulletin 5; and
- A copy of Part III of the Board's Rules of Procedure.
Then, within two days, you need to file (by any means except email, fax, or registered mail) with the OLRB the following:
- A signed original and a completed copy of Form A-6;
- The evidence that the employees don't wish to be represented by a union;
- The above-noted list of employees corresponding with the evidence;
- Form A-80
See? Couldn't be simpler.
Step 5: Win the Vote
There are limits to what you are allowed to do in campaigning. Threatening, intimidation, etc., these tactics aren't kosher. But as a member of the bargaining unit, your speech isn't nearly as restricted as the employer's speech in terms of trying to persuade your fellow workers that the union isn't in their best interests. Remember that this is your campaign; the employer is barely more than a bystander, and can't do much to help you. And if they offer assistance, you should say no, or risk compromising the application.
*****
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 author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.
Thursday, October 6, 2011
Human Rights and Quantum Physics
In Quantum Physics there's a thought experiment referred to as "Schrödinger's Cat", derived by Erwin Schrödinger in 1935. It's a bizarre concept, quite impossible to wrap one's head around, and it has worked its way into certain pop culture phenomena (such as the hit TV show "Big Bang Theory").
Einstein and others wrote an article postulating some of the premises of quantum physics (the "Copenhagen interpretation"), and Schrödinger thought that they were implausible. He used a reductio ad absurdum argument to show how the premise, if accepted, necessary led to absurd consequences:
Imagine a cat in a box with a device set up involving a tiny bit of a radioactive substance (so small that the atoms may or may not decay over the course of an hour) and a flask of acid. If the radioactive substance decays, the acid will be released and will kill the cat. If the radioactive substance does not decay, then the acid will not be released and the cat will be alive.
Einstein and others wrote an article postulating some of the premises of quantum physics (the "Copenhagen interpretation"), and Schrödinger thought that they were implausible. He used a reductio ad absurdum argument to show how the premise, if accepted, necessary led to absurd consequences:
Imagine a cat in a box with a device set up involving a tiny bit of a radioactive substance (so small that the atoms may or may not decay over the course of an hour) and a flask of acid. If the radioactive substance decays, the acid will be released and will kill the cat. If the radioactive substance does not decay, then the acid will not be released and the cat will be alive.
Schrödinger pointed out that, if one accepted the Copenhagen interpretation, until the box is opened, the cat would remain both dead and alive.
It seems pretty absurd, meaning that the Copenhagen interpretation must be wrong...right? The trouble, of course, is that over the course of several decades of experimentation and study since then, it has become pretty universally accepted in physics circles that the Copenhagen interpretation is correct. And therefore that the cat is, in fact, both dead and alive.
So how does this relate to workplace law? Bear with me for a moment while I explain how the Human Rights Commission put a cat in a box.
Until the end of June, 2008, every Human Rights proceeding in the Province started as a complaint to the Human Rights Commission. The Commission would investigate the complaint, and determine whether or not to refer it to the Tribunal. In theory, it's a 'gatekeeper' role, followed by an advocacy role. In practice, it ended up creating a large backlog at multiple stages - the Commission would often take years to investigate a complaint, before the Tribunal process even got started.
So the Legislature removed the Commission's gatekeeper role, and since June 30, 2008, people have the right to apply directly to the Tribunal, and are eligible for legal assistance through the Human Rights Legal Support Centre.
The transition was tricky. The Commission - though it no longer had jurisdiction to accept a new complaint - was able to sort out a part of its backlog until the end of 2008. Until then, people whose complaints hadn't been dealt with by the Commission had the right to drop those complaints and apply directly to the Tribunal. But that put it into a transitional stream, which was dealt with differently and for which HRLSC assistance wasn't available. In 2009, the Commission could no longer do anything with complaints, and somebody who had a complaint before the Commission *had* to make a transitional application by June 30, 2009, to keep the process alive. (Again, if the subject matter of the application was before the Commission, you *had* to use the transitional process.)
In early 2008, the Commission, aware that new cases weren't likely to be dealt with by the time they lost their mandate, basically started turning people away. Essentially, somebody would send in a complaint (which was traditionally deemed filed when received, unless upon assessment it was determined to be incomplete), and when the Commission would get to it they would call the complainant and suggest that they should drop the complaint and pursue the matter after June 30 by applying directly to the Tribunal. In most cases, the person would agree to do so.
But - and here's the rub - they didn't always get to these complaints before June 30 in the first place. There are a number of matters where similar issues arose, including the Patterson case, the Sharras case, and the Wilberforce case.
Ms. Patterson submitted a complaint on April 18, 2008. The Commission called her on June 5, 2008, and convinced her not to proceed with the complaint and to instead apply to the Tribunal the following month through the new process. When she did so, she checked the box indicating that she had filed a complaint with the Commission, which flagged the Tribunal to question whether or not the new process was available. They contacted the Commission, and the Commission explained that they didn't consider a complaint to be "filed" (within the meaning of the Human Rights Code) until it was accepted at the end of the assessment process. The Tribunal took this explanation at face value and allowed the application to proceed.
Ms. Sharras submitted a complaint in March 2008. The Commission's intake worker tried to contact her in late June, and having failed to do so, purported to close the file as withdrawn on July 2, 2008. In July, they finally got in contact, and the intake worker suggested that Ms. Sharras go directly to the Tribunal under the new process. The Commission provided the same explanation to the Tribunal as in Patterson, but this time the employer's counsel dug up the Commission's published policies, which actually had a definition of when a complaint was considered to be "filed"...which seemed to conflict with the explanation the Commission was now providing.
The parties ultimately agreed that, in that case, the complaint had been "filed" (so the Tribunal didn't ultimately decide that issue), and the question became whether or not the 'withdrawal' of the complaint prevented it from proceeding as a Transitional Application - in December 2008 the Tribunal allowed it to proceed in the transitional stream.
Ms. Wilberforce submitted a complaint in May 2008. In this case, the Commission didn't get to it until September, and they suggested that Ms. Wilberforce should proceed through the new process at the Tribunal. Which she did. This went to a full oral hearing on the issue of whether or not the complaint had been "filed", which was recently decided in this decision.
A few things are clear: First, in September 2008 Ms. Wilberforce was asked if she wanted to discontinue the Commission complaint and proceed to the Tribunal herself. The decision not to process the complaint was not made until after Ms. Wilberforce consented to it. Secondly, in September 2008 the Commission had no jurisdiction to accept the filing of new complaints.
The Tribunal accepted the Commission's evidence that a complaint was only considered filed after it had been assessed, but the timing of the filing was defined by when it had been received under the Commission's policies. If, in September, the assessment had been conducted and determined that the complaint was properly completed, it would have been considered to have been filed in May. However, without an assessment determining whether or not it was properly completed, it was not considered to have been filed.
So the filing of the complaint becomes Schrödinger's cat. Until it is looked at, the complaint can be considered both alive and dead. Though this is how particle physics appears to operate, I would argue that it isn't how our law should work.
It's worth noting that "accuracy and completeness" - the objectives of the assessment - can be regarded objectively, and are also clearly defined in the Commission's policies. It is not the case that a complaint can be considered both complete and incomplete at the same time, or accurate and inaccurate at the same time. If the complaint had some obvious deficiencies - unsigned or otherwise incomplete - that would have been a full answer to the suggestion that a complaint had been filed. But if one assumes that it was a properly completed complaint, received prior to the June 30 deadline, then it is difficult to see how the Commission had the discretion to not accept the filing of the complaint.
*****
This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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