Hurt Feelings Over Dirty Toilets
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- Created on Thursday, 14 July 2011 18:17
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A small business in Quebec has been ordered to pay $150,000 to some employees for telling them to clean up after themselves. Mr. Stephen Rapps hired a number of temporary workers back in 2006 to help him out during the busy season. Unfortunately, they left a monstrous mess in the kitchen and daily left the bathrooms in unsanitary conditions. So he called his entire staff together, a staff that was quite ethnically diverse, and chastised them for the mess. The temp workers, all recent Chinese immigrants, didn't like this too much and filed a complaint. For this staff meeting, the Quebec Human Rights Commission ordered the company to pay $150,000.00 for moral and punitive damages to those who had dirtied his kitchen and bathrooms.
What is hard to understand is how incredibly thin-skinned these complainants are. To be told off for being unhygienic, for creating a disgusting environment in which their full-time coworkers had to operate, is not the end of the world. Man up, clean up, and get back to work!
What is particularly alarming in this decision is that the punitive award was increased because the company dared to "minimize the nature of the discriminatory comments". How dare they defend themselves! And what is all the more galling is the fact that the complainants’ were told off at that meeting through the use of an interpreter who was having a hard time making the translations. Sometimes things are lost in translation… or embellished. So the tribunal penalizes the company for trying to explain their side of the story, and accepts as fact the story of the complainants as they understood it through the interpreter, despite the fact that other English speaking employees at the meeting testified that the offensive phrases alleged were never said.
This decision now stands as proof that an owner's property rights can be trumped by hurt feelings. You can read the decision for yourself here.
Alberta is Talking About the HRCs
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- Created on Thursday, 14 July 2011 05:12
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Things have gotten interesting in
In rapid-fire succession, several events have pushed the need for reform or removal of the human rights commission and tribunal to the forefront of the public consciousness. Editorials, letters-to-the-editor, talk shows, and water cooler discussions are coming fast and furious in support or in opposition. And this is exactly what Stand Up For Freedom hopes to generate across the country.
It all began at the Wildrose Alliance’s two-day Annual General Meeting in
Reform kangaroo court, or lose it
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- Created on Monday, 04 July 2011 17:51
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David Breakenridge, Calgary Sun - July 4 2011: But the proposal that seemed to have everyone’s knickers in a twist was the abolition of the Alberta Human Rights Commission, a body which even its own minister has described as a kangaroo court, despite caving to the whim of the premier when pushing for sensible reforms a couple of years back. I may not win the hearts and minds of some of my more progressive friends, but Smith, the Wildrose, Lindsay Blackett and the Sun’s Ezra Levant are right. It’s got to change, or it’s got to go — one or the other. Read the whole article here.
Reform of HRCs Arrested in Alberta... for now
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- Created on Saturday, 02 July 2011 05:12
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Back in 2009,
Two months later, the promise never materialized. Instead, the Commission received expanded powers and a bigger budget. An obviously frustrated Blackett said he didn’t have consensus from his caucus for the repeal, and wasn’t interested in pursuing something so divisive. Premier Ed Stelmach even defended the restrictions to freedom of expression, noting that “recognizing the responsibilities that come with freedom of expression is also important.”
Fast forward to 2011. Just this week, in an interview with Ezra Levant, Blackett revealed that it wasn’t so much a divided caucus that opposed reform – it was Stelmach himself. And any such reforms appear to be off the table, as far as the Alberta Progressive Conservatives are concerned.
The Wildrose party (formerly Wildrose Alliance) has stepped into the void, nailing a plank into their platform by passing a resolution to abolish the Human Rights Commission and strengthen protections for freedom of expression.
If any province is ready to demonstrate that the Commissions and Tribunals are an obsolete appendage of a bygone era, it’s
Political Correctness in Housing Advertisements
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- Created on Saturday, 18 June 2011 03:26
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The Ontario Human Rights Commission is, in many ways, the trailblazer of the human rights industry. While the BCHRT takes the cake for mind-numbing head-scratching decisions, the OHRC has a much broader mandate to proactively interfere in the economic activities of individual Ontarians.
Led by former mayor Barbara Hall, the Commission has long chafed at its restrictions to repressing free speech, asking on several occasions for increased legislative powers over the media. She was involved in the Mark Steyn and MacLean’s case, as one of the three jurisdictions in which the complaint was shopped. Hall recognized she had no jurisdiction over a nationally-distributed publication, but nevertheless used her bully pulpit to denounce Steyn’s book, saying it “has been identified as contributing to Islamophobia and promoting social intolerance.”
In the aftermath, Hall called for the creation of a media watchdog, to censor the national media in much the same way as provincial Tribunals censor the written and spoken word with their jurisdictions – in her words, “less strict and more accessible than the courts”, which “would allow readers to bring complaints against media anywhere in Canada, no matter where they live”.
Strangely enough, Barbara Hall seems to be remarkably selective about the issues that her Commission is pursuing. One reporter asked her why she was so focused on Steyn while saying absolutely nothing about the recent spate of honor killings in
Her response? “There are a thousand things that happen in the
All righty then. Hall’s latest crusade is making sure that rental ads in
Now, you might be asking, how does the mere mention of poor soundproofing in a rental suite discriminatory? “[it] may indicate bias against families with children”, the OHRC’s official website states. It’s also not legal, in the Commission’s view, to put “no pets” on the rental ad, even if the landlord is allergic to pets – that might discriminate against someone with a service dog. And don’t even think about any suggestions of the ideal type of tenant; those are clearly discriminatory. “Suitable for student”, for example, or “suits working couple”, are definite no-nos.
“Advancing human rights for tenants,” the OHRC website proudly states. But nowhere does it mention it is interested in the human rights of landlords. It’s more important for a prospective tenant to be free from statements like “no soundproofing” than it is to protect landlords’ freedom to use their property as they see fit. In a way, it aligns with the earlier example, in which the human right for Muslims to be free from offense is more pressing than their right to be protected from murder.
The selectivity, dare I say discrimination, of the Commission is undeniable.
Ontario's Human Rights System Must Be Abolished
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- Created on Thursday, 09 June 2011 04:35
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Guest Column by Chris Schafer
Now that Tim Hudak, leader of Ontario’s Progressive Conservative Party, has backtracked on his plan to scrap the province’s Human Rights Tribunal if elected, the focus of debate has turned to reform. However, piecemeal reform, no matter how overdue and necessary, will not cure what ails the human rights system. Nothing short of abolishment will suffice. Here’s why:
What Ontario’s “human rights” advocates fail to heed is that discrimination ought to be universally available to everyone. It is a natural part of individual behaviour. We discriminate every day in the food we eat, the music we listen to, and the friends we keep. In fact, the right of individuals to make choices, or in other words discriminate, is a fundamental aspect of a free society, tied to such genuine rights as freedom of association and contractual freedom.
However, in Ontario only certain categories of individuals – categories that legislators have presumed are economically less powerful, such as tenants, employees, and consumers – are free to discriminate. This group is free to hold prejudices and discriminate however they please when deciding from whom to rent, for whom to work, or from whom to purchase goods and services. On the other hand, landlords, employers, and service providers – groups presumed to be more powerful – cannot discriminate freely among tenants, employees or customers.
The main objection to the argument for the universal freedom to discriminate arises from concerns about majorities passing laws to exploit minorities, such as the infamous “Jim Crow” laws in the U.S. that (among other things) restricted blacks to the backs of buses. However, a significant difference exists between discrimination by individuals and discrimination codified in state law. The state can use its coercive power to force compliance by minorities, whereas criminal law does not condone the use of force by individuals to enforce their discriminatory preferences.
In a truly free society, where no Jim Crow-style laws compelled businesses to engage in discrimination, there would be economic incentives for even the most recalcitrant bigot to reconsider his prejudices. Discriminatory behaviour comes with a price tag, since it reduces the bigot’s range of options with respect to both suppliers and customers.
In a competitive free market, employers for example, must continually seek ways in which to outdo their competitors. A failure to respond to changes in the marketplace increases the chances of going out of business. An employer who decided to hire on a discriminatory basis instead of on capability to do a job, would be hindering his own competitiveness by passing up some of the best candidates. He would not be able to continue to do so for long because operating under the competitive disadvantage of discrimination would confer an advantage on competitors. Even if a large percentage of employers started out as bigots, competitive pressures would eventually reduce this percentage as they became compelled to either drop their bigoted hiring practices or go out of business.
For example, employers who decided to discriminate and not hire or under-pay otherwise qualified white males, would create a sizable pool of underemployed and underpaid white men. Other non-discriminatory employers could hire (even at a salary only slightly above what the discriminatory employers offered) and reap a profit. Eventually, other employers, including those discriminatory employers for whom the lost profit is too high a cost in relation to their preference to discriminate, would seek to hire the low-paid white male employees, effectively driving up the wages of white males and returning to an employment rate and salary level for this group that existed prior to discrimination.
Thus, despite discrimination, the free market offers the best way to improve the lot of those discriminated against. Discrimination enshrined in law, like U.S. law that kept blacks at the back of buses, provides no such route to improvement because the discriminatory majority does not have to bear the costs of their action, as it would have to in the private sector. This is because government ministries and departments do not go out of business for failing to respond to competitive pressures; they always have a pool of taxpayer money from which to draw.
What visible minorities, gays, and other enumerated groups under Ontario’s “human rights” system must come to see is that what they are now doing through the Tribunal is the same thing that was once wrongly done to them. They are using the coercive power of the state for private purposes; to compel people to serve them, to forbid individuals from expressing their opinion, etc. However, if history has taught us one lesson, it is that a government that is powerful enough to outlaw discrimination by individuals is also a government powerful enough to compel discrimination when the public mood of the majority changes. This is why Ontario’s human rights system must be abolished.
Chris Schafer is the Executive Director of the Canadian Constitution Foundation (www.theccf.ca). This article originally appeared in The Lawyer’s Weekly, and is reprinted here with permission from the author.
Criminologist: Rights commissions have to go
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- Created on Monday, 06 June 2011 15:24
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John Martin (Abbotsford News, June 2 2011 - copied here with permission from the author)
It's time to once again set our sights on the country's human rights commissions. A few years ago this was one of the most controversial issues in the country. The Canadian Human Rights Commission, and its provincial counterparts, were under intense scrutiny for their reckless attempts to impose censorship and exhibit a horrifying disregard for due process.
Created many decades ago to address discrimination toward those seeking employment or housing, these commissions soon found themselves with little work on their hands as there just didn't seem to be enough discrimination out there to keep thousands of politically correct bureaucrats and appointees busy.
Guest Editorial: The Real Problem with Human Rights Tribunals
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- Created on Thursday, 26 May 2011 03:20
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By Karen Selick
Oh, the pathos. I've watched it twice now -that painful video of my friend Ezra Levant, talk show host on Sun News, skewering my friend Randy Hillier, Ontario MPP. The May 6 interview sought an explanation of why Progressive Conservative party leader Tim Hudak recently backtracked on his previous pledge to abolish the human rights tribunals in Ontario if elected.
Levant grilled and Hillier waffled -very uncharacteristically, I might add. Levant eventually desisted, saying Hudak himself should come forward to answer the questions. (The video's still available on YouTube if readers wish to experience vicarious mortification.)
But my real beef is that neither Hudak nor Hillier nor even Levant have ever actually addressed the root problem with Ontario's socalled "human rights" legislation. There are three distinct categories of problems, but even bulldog Levant only ever addresses two of the three.
First there are what might be called procedural problems. The tribunals that hear discrimination complaints don't follow the normal rules of evidence that regular Ontario courts use. Hearsay evidence that cannot be tested by crossexamination is allowed in. Complainants often get free legal assistance from the Human Rights Legal Support Centre, while defendants have to pay for their own lawyers. Defendants who prove that they did not break the law get no compensation for their legal fees. The adjudicators are political appointees who generally applied for the job because they desire passionately to advance the cause of complainants.
The second category of problems are the fallout created by the first. Bizarre, far-fetched claims are increasingly being submitted to the tribunal. A virtual cottage industry has evolved in which anyone who alleges that his or her feelings have been hurt by someone suspected of having deep pockets can extort a settlement out of his target merely by lodging a complaint. No matter how groundless the complaint might be, the defendant must weigh the cost of fighting it (in terms of time, energy, emotional distress, negative publicity and money) against the cost of paying a lump sum to end the ordeal quickly. The "going rate" for settlements is $25,000, one lawyer told me, but the legal fees for defending could easily be double. So defendants blanche and choke, but they pay -which encourages more claimants to concoct outlandish complaints.
Levant has labelled this process a "shakedown." He even wrote a bestselling book by that name, documenting innumerable instances of it.
Hudak now says the Conservatives would "fix" the first set of problems while leaving the tribunals in place. Levant says the tribunals must be dismantled since they are "competing with real courts for cases, while lacking all of their institutional expertise and procedural safeguards." But moving human rights cases into "real courts" would still not address the third category of problem: the fact that the human rights code itself is philosophically unsound.
Levant describes the human rights system as "a beautiful idea -that failed." He credits it with the "noble goal of eliminating real discrimination ..."
Wrong.
Human rights codes have fabricated a phoney "right" to be free from discrimination and used it to override a panoply of genuine human rights, including: freedom of expression, freedom of association, freedom of contract and control over one's private property. There can be no such thing as the right to violate someone else's rights. It's a contradiction in terms. The only solution to this seeming paradox is the complete repeal of the human rights codes, not mere changes to the enforcement mechanisms.
Incidentally, we must not confuse the obligations of the state with those of private individuals or businesses. We can rightly insist -as we do under subsection 15(1) of the Canadian Charter of Rights and Freedoms -that the state not discriminate arbitrarily in its laws or its actions. The state holds a legal monopoly on the use of force. Its sole role and justification is to protect the rights of its citizens. Therefore, it owes the same duty, without discrimination, to all of them. There is no one else a citizen can turn to if the state denies him its services for arbitrary reasons.
Individuals and businesses hold no such monopoly power over one another, and therefore owe no such duties to one another. If one person declines to deal with you, you have no right to coerce him against his will. Such a right would be tantamount to forcing him into involuntary servitude -yes, slavery. There's nothing beautiful or noble about that.
Karen Selick is the litigation director of the Canadian Constitution Foundation. This article first appeared in the Ottawa Citizen and is reprinted with permission from the author.
Baby Steps
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- Created on Sunday, 15 May 2011 02:02
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Tim Hudak, the leader of the Ontario Progressive Conservative Party, made a pledge during his leadership campaign to get rid of the Ontario Human Rights Tribunal. He called the Tribunal an “increasingly dysfunctional bureaucracy”, and under the stewardship of current Premier Dalton McGuinty has “advanced nuisance claims and denied justice to legitimate complaints.” Hudak proposed that the OHRT be disbanded and human rights cases tried in real courts with specially trained judges.
Many at the time recognized that the pledge was aimed to earn the support of a particular faction of the Ontario PC party, namely fellow leadership candidate Randy Hillier and his supporters. Now that he is approaching a general election as the leader of the front-running party, Hudak has suddenly started to sing a different tune.
Prima Facie and the Reversal of Onus
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- Created on Friday, 06 May 2011 07:02
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One important aspect of modern judicial systems is the presumption of innocence. In order to force punishment or restitution on a defendant in criminal proceedings, the burden of proof falls onto the prosecution. Without sufficient proof of guilt, the defendant remains innocent without having to lift a finger. Indeed, the prosecution must establish what is known as prima facie evidence to even begin a trial. Prima facie is Latin for “at first glance”, and in legal terms refers to the amount of initial evidence that must be brought forward by the prosecution before any response from the defence is required.
In human rights law, the presumption of innocence is only nominally maintained. Through successive decisions at the tribunal level, and a landmark decision at the Supreme Court of Canada (OHRC and O’Malley vs Simpson-Sears), the burden of proof for a complainant to establish prima facie evidence was whittled away to almost nothing. In the O’Malley case, the Supreme Court acknowledged that it had no legislative mandate to make the changes it did. But it went ahead and did so anyway, referring to a controversial landmark American Supreme Court decision as their authority to do so.
So how does the presumption of innocence work in human rights discrimination complaints today? The complainant only has to establish a prima facie case of discrimination, after which the defendant is presumed guilty and must prove its innocence. A prima facie case in a human rights complaint over employment discrimination only needs to prove three things:
1) Is the complainant a member of a “protected group”?
2) Did he or she suffer adverse treatment?
3) Is it reasonable to infer that some protected characteristic of the complainant was a factor in the adverse treatment?
Numbers 1 and 2 are easy to prove. As stated in the Earle case, anyone who is a man or a woman is a member of a “protected group”. That includes roughly 100% of the population. “Adverse treatment” could be something as innocuous as not being promoted or given a raise when the complainant felt that he or she should have been. In other words, everyone is experiencing adverse treatment all the time if they aren’t getting exactly what they want from their employment relationship.
So the only thing that remains is to dig up some dirt on the employer to infer that some form of bigotry may have been a factor in the adverse treatment. A recent decision shows us how easy this is.
Clint Stephenson was let go from his job due to poor performance. The Tribunal quickly satisfied the first two requirements for a prima facie case: First, Mr. Stephenson was black (a “protected group”). Second, Mr. Stephenson was fired (adverse treatment).
And third, Stephenson’s employer had once made a borderline racist comment within his earshot about a completely unrelated matter. No first-hand corroborating evidence was presented of this statement; it was accepted only on the word of the complainant alone.
Case closed, please pay $15,000. See how easy this prima facie thing is?