Redefining Truth, Emplyment, and Other Important Terms

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Created on Saturday, 23 April 2011 06:31

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Comedian Guy Earle has never been one to pull his punches. In fact, invective and innuendo is almost indispensable to a comic’s repertoire. It is especially necessary for the inevitable moment when the comic must “put down a heckler”. But one evening, at Zesty’s Restaurant in Vancouver, he put down the wrong heckler, a lesbian by the name of Lorna Pardy. She launched a human rights complaint, and has recently won an order of $15,000 from Earle and another $7000 from the restaurant.

The details of what exactly happened on the night that Ms. Pardy claimed to have been so traumatized are murky. Yet I hesitate to give the readers even a brief summary of the events, for fear of retribution by the Tribunal. Why? Earle had posted a YouTube video of his side of the story prior to the hearing, and was slapped by the Tribunal for “publicly [making] false and inflammatory statements about Ms. Pardy’s conduct”. Who decided that the statements were false and inflammatory? A judge?

No, this all-knowing seer is Murray Geiger-Adams, a labour lawyer who works for the BC Teachers’ Federation, which strongly supports the type of activism we are seeing at the Tribunals. Recall that Earle’s well-respected lawyer, James Millar, walked out of a preliminary hearing when Geiger-Adams refused to consider whether he had jurisdiction. Millar then filed an application in BC Supreme Court to find the Tribunal in contempt.

Geiger-Adams has authored a string of decisions that have drastically expanded the definitions of the Code, always for the benefit of complainants. Only weeks ago, he sent the legal profession into a quandary by redefining “employee” to include law partners. In the Earle case, the definition of “employee” was also expanded to include volunteer stand-up comics. After all, if Earle wasn’t an employee, the Code provisions on the delivery of service, under which Ms. Pardy based her complaint, wouldn’t apply. Under Mr. Geiger-Adams’ new definition of employment, I would be an employee of a musical instrument retailer if I sat down and plunked away at a piano with permission from the owner.

This redefinition is based on a common understanding among all of Canada’s Human Rights Tribunals:

1) Definitions should be interpreted as broadly as possible when establishing that discrimination has taken place, and

2) Defences for discrimination (like fundamental Charter rights to freedom of expression and freedom of religion) should be interpreted as narrowly as possible.

Our fundamental freedoms are being eroded at an alarming pace by these Human Rights institutions. The framework is in place to ensure that this erosion continues, whether it is by gradually expanding precedents like this one, or the built-in mechanisms of Human Rights Codes that justify an ever-expanding scope. This is why tinkering around the edges is not going to solve the problem.

A Warped Sense of Entitlement

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Created on Friday, 15 April 2011 07:37

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For the most part, the Human Rights Act and Codes prohibit negative discrimination; that is, treating someone adversely on the basis of a protected ground like race or sex. While this policy is open for misuse, most notably the gradually widening definitions over what constitutes prohibited grounds, it does mirror the fundamental principle upon which any legitimate government is based: the Rule of Law. This mandates that the law must apply equally to everyone who is under the jurisdiction of the law, regardless of personal beliefs or immutable characteristics.

However, there is a flip side to the prohibition of negative discrimination in the federal Human Rights Act, with similar provisions in most provincial Codes – positive discrimination. That is, if anyone does not have the capacity to avail themselves of your products, services, employment, or rental accommodation, you are required to “build them a ramp”, or go far beyond your profit margin for that particular transaction in order to accommodate some inability of your customer. Again, it is couched in words and intents that make it seem commendable. It is certainly a social good to help those who are less able to help themselves. But again, the devil is in the definitions.

There are two ways out for employers and landlords. The first, “bona fide” occupational requirements, allow the employer to justify the exclusion on the basis that it would represent a significant risk to safety or property. This would allow an employer to exclude a sight-impaired applicant from a truck driving job. In the second exemption, “undue hardship”, the employer or landlord can justify the exclusion on the basis that this accommodation alone would represent costs that would put him out of business.

Both of these definitions have been changing over time, making these defences more and more difficult to invoke. Most complaints alleging insufficient accommodation involve the disabled, who are beginning to realize the power at their disposal to have their every wish and whim granted. Don’t like the placement of bus stops in the city? Complain that your disability entitles you to have a bus stop installed closer to your house or your destination. Hate your boss? If you have a disability, you can get away with almost anything at work and you could launch a complaint if fired.

But in the most shocking case of this growing sense of entitlement, the Ontario Human Rights Tribunal accepted a complaint from a man suffering from arthritis. After visiting a charity food bank to pick up his daily basket of free food, he demanded that his disability entitled him to a free ride. Food bank employees had given him a ride in the past out of the goodness of their hearts, but had recently been told by their insurance provider that their policy didn’t cover employees who did this.

Stung by the refusal for a ride, the man launched a human rights complaint with the OHRT, claiming that his right to be accommodated had been violated. The Tribunal informed the food bank that it must attend a meeting with the man to discuss the complaint. Searching for help, the directors of the food bank despaired to find that there was none for them – all government funds were dedicated to helping complainants, not respondents. In addition, they found out that their own personal property could be seized by the Tribunal to pay damages or a settlement, even though they are volunteers.

Luckily for the food bank and its directors, the complaint was dropped when the complainant failed to call in for the scheduled teleconference. The Tribunal claimed that the meeting was likely to inform all parties that the complaint had no reasonable chance of success, but that does little to assuage the anguish that the directors experienced in the lead-up to this meeting.

The OHRT and the Ontario Human Rights Code are turning good deeds into entitlements and legal requirements. In the process, they’re making it more and more difficult for everyday citizens to show compassion and charity to their fellow citizens, since it opens them up to complaints and harassment by those conditioned by the Code to a warped sense of entitlement.

Where Do Your Candidates Stand?

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Created on Friday, 08 April 2011 21:28

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With the current federal election campaign  going on, candidates for seats in Parliament are more available to the public now than they ever will be if they get into office. They are willing and ready to speak with their constituents. Yes, that includes you. There is simply no better time to have your voice heard than now.

None of the mainstream political parties have made any clear commitment about reforming the Canadian Human Rights Act as it currently stands. Individual members, such as the NDP’s Bill Siksay, have made efforts to expand the Act to the detriment of our fundamental  freedoms. Other members have attempted steps to highlight the most obvious excesses of the human rights system, such as Liberal Keith Martin’s private member motion on Section 13. But the silence from the party leaders has been deafening with respect to the Act.

This is your chance to ask the candidates in your riding where they stand on protecting Canada’s fundamental freedoms from the misuse of the Act. You can send them an e-mail, attend an all-candidates’ forum and submit a question, or attend an event for a candidate and ask them in person. But before you do, first do a little background research on the issue you’d like to bring up, in case they ask a counter-question. Our website is an ideal place to do just that.

Most importantly, you can relay to them that reform is possible and plausible. Point them to the changes that are happening in Saskatchewan, in which the provincial Human Rights Tribunal is being disbanded, and all hearings will be held in the Court of Queen’s Bench. In court, real judges preside, rules of evidence are followed, and the defendant has clearly defined rights.

Here are a few suggestions of questions you may want to ask:

• Section 13 of the Canadian Human Rights Act prohibits speech that “may expose” persons to hatred or contempt. Many organizations, including the Canadian Human Rights Tribunal itself, have questioned the constitutionality of Section 13. Do you believe that Parliament should repeal this section to preserve the fundamental freedoms of Canadians?
• The Canadian Human Rights Tribunal does not abide by many of the long-standing safeguards for defendants that normally apply in a court of law. Since Tribunals have almost unlimited power to fashion remedies as they see fit, shouldn’t  those charged under Human Rights Codes at least get the same Charter protections as those charged with criminal offences?
• The administration of the Canadian Human Rights Tribunal has been described in many recent editorials as “dysfunctional”. What would you do to remedy this situation?
• Human rights complainants receive legal aid from the Canadian Human Rights Commission at the taxpayer’s expense. Respondents have to fund their defence out of their own pocket. What would you do to remedy this unfair situation?

Let us know if any candidates take a clear stance in favour of reforms to the Human Rights Act. You can reach us through the Contact Us feature on our website.

It is helpful for you to know where they stand. But it is even more helpful to share this accurately with your community. Consider writing a letter to the editor of your local paper to profile both the issue and the candidate’s views. Yes, it requires time and courage, but it also goes a long way to protecting our fundamental freedoms. Check out this excellent letter that was published in the Lethbridge Herald by a Stand Up for Freedom campaign reader. http://www.lethbridgeherald.com/letters-to-the-editor/human-rights-commissions-undermine-our-basic-freedoms-32911.html

A Tragic Flaw in Human Rights Tribunals

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Created on Thursday, 31 March 2011 02:30

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By Daniel Lublin

Employers often complain that human rights tribunals are stacked against them. One employer’s recent experience, related below, demonstrates why. 

After a night of drinking at a company-sponsored retreat in North Carolina, Anne-Marie Sutton slipped into a bathing suit and joined some colleagues in a hot tub. Sutton, a contractor for an Ontario accounting firm, had travelled with the company to the retreat. Alcohol flowed freely, and when another guest starting flirting with her, Sutton reciprocated. Once in the hot tub, they starting making out. One of the witnesses who later testified said that Sutton appeared “into it” and looked “like she was having a good time.”  

However, after returning home from the retreat, Sutton suddenly claimed that she had been drugged and sexually assaulted in the hot tub by the guest she had made out with and a partner from the firm. Sutton quickly resigned from her job and suggested that she had been raped. Dissatisfied with the company’s response to her concerns, she launched a human rights complaint, alleging she had been secretly videotaped, drugged and sexually assaulted at the retreat. 

After an eight-day hearing, the Ontario Human Rights Tribunal recently concluded that Sutton simply could not be believed and that her version of the events did not occur. 

The problem is, unlike the courts where the loser pays legal costs to the other side, human rights tribunals have no mandate to award legal costs. This serves employees’ interests but not those of their current or former employers. If employees have no risk of losing at trial and paying legal costs, why not pull the trigger on an extensive complaint? Here, despite making serious claims that were ultimately unsupported, Sutton was not forced to pay her former employer even a dime. 

What’s worse is that while Sutton was provided with legal counsel at the government’s expense by the Human Rights Legal Support Centre, a provincially funded agency that pursues claims on behalf of employees, her former employer was left to fend for itself. In my experience, if complainants are actually forced to pay for a lawyer, fewer frivolous claims will be advanced, leaving more time and resources for those that actually do have merit.

Daniel Lublin is an employment lawyer with Whitten & Lublin LLP. This article first appeared on the Metro website. Reprinted with permission from the author.

1001 Ways to Spend Your Tax Dollars

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Created on Thursday, 24 March 2011 21:58

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The Canadian Human Rights Commission is becoming quite adept at shoveling your tax dollars out the door.

Lawyers in Ottawa were happy to hear that the CHRC is appealing a decision by the federal Human Rights Tribunal, which dismissed a complaint over First Nations child welfare funding. It’s good for business when two government agencies challenging each other in court over how to spend tax dollars, seeing as how the taxpayer is on the hook for the entire legal tab.

This all started when the First Nations Child and Family Caring Society launched a human rights complaint over child welfare funding on reserves. The Canadian constitution is quite clear that on-reserve funding for social programs is handled by the federal government, while the provincial governments must fund the same programs for everyone else in the province. It goes without saying, then, that the federal government is going to fund the same program differently from the provinces.

To the Caring Society, this represented racial discrimination in provinces where the federal funding formula resulted in lower per-child funding for child welfare programs than the provincial formula. Of course, they claim that the reverse is not true: that it is not discriminatory to fund First Nations programs more than provincial ones.

This is a classic case of expecting to have their cake and eat it too. The Canadian Human Rights Tribunal saw it exactly that way, recognizing that the federal government retains the constitutional power to set its own funding levels.

The Commission didn’t like the Tribunal’s decision. They have appealed to the federal court, and look ready to take this all the way to the Supreme Court if necessary. This strikes a familiar chord with anyone who remembers the Court Challenges Program, in which the federal government paid special interest groups to launch challenges against itself, to which federal funds needed to be allocated for legal defence.

It is time to end this abuse of public resources. If the FNCFCS wishes to challenge the government’s policy in federal court, they should do so on their own dime, not the taxpayer’s. If they are successful, it is quite likely that costs would be awarded by the court. If not, then maybe they should be on the hook for wasting public funds. Let that be decided by a judge, and not by a bureaucrat in the Human Rights Commission.

Playing Fast and Loose With Definitions

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Created on Friday, 18 March 2011 05:32

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True human rights violations are serious business. Whether it is the systematic segregation and state-sponsored discrimination of blacks in the southern United States, the denial of property rights to women, the persecution of Jehovah’s Witnesses in 1950’s Quebec, or the quotas on Jewish students in turn-of-the-century universities, the impact on the victims can be life-changing.

When the Human Rights Acts were first instituted, they were a well-intentioned, if misguided, attempt to rectify serious incidents of discrimination that the framers observed around them. It was a time in history when society in general was waking up, in a big way, to its own bigotry, racism, and intolerance.

Fortunately, unlike criminal violations, systemic discrimination was a rapidly disappearing problem. It is arguable whether the Human Rights Commissions and Tribunals had much of an effect on this; racial discrimination was rapidly rising to the forefront of social conscience in the decades before any legislation was put in place. Either way, the experience of the last few decades has permanently imprinted on almost everyone a natural revulsion to racism and other overt forms of discrimination.

But some have used this new social consciousness for their own ends. Those in the Human Rights Tribunals, seeing their power decline as complaints decreased, interpreted the Codes more and more expansively as time wore on so that complainants would be emboldened to launched complaints. The Commissions changed the definitions of words to create entire new categories of discrimination, by which they could continue to claim that their work was even more urgently needed than ever. Special interest advocates began to redefine their own cause as a human rights issue. There is one thing common among all of these – a change, gradual or sudden, of the meaning of words.

Recently, in a speech about international law at York University, Phillip Dufresne of the Canadian Human Rights Commission made a startling redefinition. His topic was the United Nation’s Convention on the Rights of Persons with Disabilities, but recognized that he was giving his speech on International Womens’ Day. “Women could also be counted as persons with disabilities”, he was reported as saying, “given that they are often at a disadvantage.”

Besides being a ridiculous assertion, Mr. Dufresne’s redefinition of what it means to be disabled does a disservice to those who truly face challenges because of their physical or mental disabilities. One group suffers to exalt another. Indeed, this is what is actually happening behind the scenes in the Human Rights system; individuals purporting to represent different groups jockeying for recognition, influence, and ultimately, power.

Don’t be fooled by the constant self-serving redefinition of terms.

It's Silly Season at the BC Human Rights Tribunal

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Created on Friday, 11 March 2011 04:15

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There is no shortage of comic relief in a recent decision by the BC Human Rights Tribunal, in which it fined a Victoria businessman $10,000 for practicing his self-described religious obligation to “dispel negative energy” – by hugging his female employees against their will. The complainants were three sisters who all worked for the defendant at food stands in the Victoria harbor. They claimed that they were subject to repeated and unsolicited hugs from their employer, Clint Petres, which amounted to sexual harassment and subsequently thousands of dollars in reparations.

It all began when one of the three sisters felt she had a grievance because she wasn’t paid double-time for working on Canada Day. When she sought help on how to get her employer to pay up, some student lawyers convinced her to get back at him with a human rights complaint. A few months later, she hit the jackpot.

Let’s start with the Tribunal’s most outrageous – and funny – violation of judicial ethics. Under the Introduction, point 5, the decision lists all who testified on behalf of the complainants: the three sisters and another individual listed as Luke Skywalker. The testimony of Mr. “Skywalker” appears throughout the decision to corroborate the complainants’ version of events. In a real court, a witness who refused to properly identify himself would be inadmissible. In a human rights tribunal, it appears anything goes.

Mr. Petres was also accused of discriminating on the basis of religion by asking his employees to display religious symbols. The complainants also believed their religion, atheism, was discriminated against by his request that they read a new-age book titled The Secret. The decision responded by taking great pains to determine if the beliefs of Mr. Petres are religious in nature. Incredulously, they found that his beliefs were not. Mr. Petres described himself as “qualified Reiki practitioner”, which is a “vibrational healing modality involving the transfer of universal life force to a recipient”.

In other words, if Mr. Petres was displaying a cross or a menorah, he would have been found guilty of discrimination on this point, but not if he displayed crystals in a specific way to allow “positive energies to flow around them”. Mr. Petries can pressure his employees to read a new-age book recommended by Oprah, but not suggest the Bible or the Koran. This inconsistency and bias is a frequent hallmark of Tribunal decisions.

As for the sexual harassment, Mr. Petres was found guilty, and as Kevin Libin of the National Post agrees, he well might have been guilty. But is this the forum in which serious allegations of molestation should be heard? Can Luke Skywalker be a credible witness when a man’s reputation and livelihood are at stake? Should “the right to choose whether to be hugged or not” be added to our human rights code? Is a $10,000 fine plus the time and expenses of the hearing an appropriate penalty for making someone feel “uncomfortable”?

Guest Editorial: Human Rights Decision Harms Men and Women With Families

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Created on Thursday, 24 February 2011 18:49

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By Derek James

Many Human Rights Commission decisions produce unintended and harmful consequences.  One example is Johnstone v. CBSA, where the Canadian Human Rights Commission (CHRC) made it easier for employees to get their employers over a barrel.  How?  Simply refuse to find childcare for your children.  The CHRC awarded Fiona Johnstone over $35,000 in damages, plus lost wages and benefits because her employer would not bend over backwards to accommodate her request for a specific work schedule.  This decision will unintentionally make it more difficult for young men and women with families to find good employment.

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Vague Definitions and Educational Mandates

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Created on Thursday, 10 February 2011 20:43

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Bill Siksay has campaigned through Parliament in order to have two additional criteria added to the protected grounds in the Canadian Human Rights Act. He believes that those who differ by “gender identity” and “gender expression” should receive special protection under the CHRA. Unfortunately, the bill presents several conflicts that expose several of the most critical problems with the CHRA to begin with.

First, the two terms, like many of the other protected grounds, are relatively ambiguous. It is left to the Commissions and Tribunals themselves, in the common law tradition, to arrive at a clearer definition through precedents. The courts do this on a regular basis, putting meaning and clarity to the words of the laws issued by Parliament. Unfortunately, the Tribunals lack many of the procedures and safeguards of the courts. Appointees to the Tribunals are, by and large, career human rights activists. In addition, they have been given a legislative mandate to interpret the Act as broadly as possible to further their goals. Finally, Tribunal decisions cannot be appealed to a higher court; they can be subject to judicial review, which has a far narrower scope than an appeal.

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