Thursday, February 23, 2012

HRTO's Silence on Racial Profiling JR Application Speaks Volumes !

I could not believe my eyes when I read the Divisional Court's ruling in Pieters v. Peel Law Association. The Divisional Court ruling states that the HRTO took no position on the application proper other than to request that if the application is allowed that it be heard by a new panel. This is an odd move indeed. In my close to twenty years I have yet to come across a tribunal like the HRTO taking such a position. Normally tribunals strenuously support their decisions. During my articles of clerkship with the Ontario Labour Relations Board I took great pleasure in watching the likes of current Justice of Appeal Stephen Goudge and Mr. Chris Paliare forcefully advocate on behalf of the OLRB at the Divisional Court.

As a lawyer who is interested in the rule of law, fairness and human rights in Ontario I am troubled by the HRTO's failure to make submissions in support of the Tribunal's decision before the Divisional Court. I wonder whether the fact that the decision involved the controverial issue of racial profiling and the legal profession caused this unusual position. If this is the case then surely the HRTO has failed to live up to its objective. If this is the case it sends a very loud message to the community of respondents - employers - service providers and the like that human rights in Ontario are not quasi-constitutional rights as the Supreme Court of Canada often refers to them. I leave you with this. The HRTO's refusal to make submissions before the Divisional Court on a racial profiling case which their tribunal upheld is like the OLRB finding that Walmart committed an unfair labour practice under the Labour Relations Act by firing 10 union supporters and then appearing before the Divisional Court and not making submissions in support of their decision. It is unusual beyond belief.

Note: This piece is written for the sole purpose of drawing public attention to an issue of public importance - namely - the operation of the HRTO and the respect for human rights in Ontario.

Tuesday, February 21, 2012

Pieters v. Peel Law Association: Is it a vase, two faces or bad law ?

The Divisional Court's ruling in Pieters v. Peel Law Association 2012 ONSC 1048 brought back vivid memories of Professor Bill Bogart's animated and profound lectures at the University of Windsor on the subject of the superior court's supervisory function over inferior tribunals. On the question of the level of deference to be afforded inferior tribunals Professor Bogart would state, "is it a vase or two faces ?" in an effort to communicate the patent lack of consistency post Cupe Local 963 v. New Brunswich Liquor Corp. [1979] 2 S.C.R. 227. The lesson which I understood from those lectures and the post Cupe (supra) jurisprudence on the question of the standard of review and level of deference which inferiror tribunals will receive under judicial review is that the process is far from being logically predictable and like the concept of beauty it remains largely in the eyes of the beholder.

The Divisional court's ruling in Pieters supra provides a splendid example of the "vase and two faces" aspect inherent in judicial review of adminstrative tribunals. On the one hand factual decisions of the Tribunal going to the determination of whether there has been discrimination under the Code are supposed to be afforded "a high degree of deference".(see Audmax v. OHRT 2011 ONSC 315 and Shaw v. Phipps 2010 ONSC 3844) On the other hand, decisions of the Tribunal are required "to be rationally supported and to fall within a range of possible, acceptable outomes that are defensible in fact and law." (Audmax supra)

In Pieters a lawyer of African-Canadian racial background alleged that the Peel Law Association and its librarian violated his rights under the Code to be free from discrimination on the basis of race when she approached him in the lawyer's lounge which they opperate at the Brampton Court House and asked him to identify himself. Following a three-day hearing the Tribunal found the librarian had violated Mr. Pieter's rights under the Code. The Peel Law Association sought judicial review of this decision on the basis that the Tribunal erred by unreasonably determining that a prima facie case of discrimination had been established.

The Divisional Court went on to grant the Peel Law Association an order quashing the Tribunal's decision, an order substituting a decision dismissing the applications before the HRTO and an order of costs against the respondents in the sum of $20,000. The relevant portions of the court's analysis in support of this conclusion are found at pages 6-10 of their decision. A review of their decision shows that the court decided to overturn the Tribunal nothwithstanding the fact that the alleged errors are findings of fact clearly within the ambit of the "high degree of deference" the Tribunal is traditionally afforded.

The rationale provided by the court for what appears to me to be a departure from precedent is rooted in the court's improper application of two leading cases involving adverse impact discrimination as distinct from direct discrimination which was involved in Pieters. The Divisional Court relied on Ontario Director, Disability Support Program v. Tranchemontagne, 2010 ONCA 593 and McGill University Health Centre v. Syndicat des employes de L'Hopital General de Montreal 2007 S.C.C. 4 and went on to charcterize the issues before the Tribunal and the court in the following words:

"The key issues that fall under this heading are whether the
complainants established a distinction or differential treatment
and if so whether they demonstrated a causal nexus between their
race and the disadvantage they claimed to have suffered, on a
balance of probabilities." (at paragraph 20)

In order to illustrate the error of law committed by the Divisional Court in Pieters it is necessary to make some reference to the two cases on which the court relies upon. The important point of distinction is that both of those cases involved adverse impact discrimination and not direct discrimination. Ontario Disability Support Program v. Tranchemontagne supra involved a claim by two alcoholic men who were denied disability benefits under s.5(2) Ontario Disability Support Program Act 1997 S.O. 1997 c. 25 Sched B. That section of the subject legislation disqualified the complainants from eligibility because of their dependence on alcohol. The effect of this denial was to deny the complainants disability benefits - which paid $959 per month and provide them instead with welfare under the Ontario Works Act, 1997 which provided them with a mere $423 per month. The McGill case involved an employer's duty to accommodate where a grievor is unable to return to work in accordance with a collective agreement mandated time frame. A careful reading of those two authorities suggests that the Divisional Court's holding in Pieters requiring "a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered" is limited to adverse impact discrimination cases and not direct discrimination cases like Pieters supra.

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance, namely, the level of judicial deference that administrative tribunals are permitted in law and the proper evolution of human rights jurisprudence in Ontario.

Sunday, February 12, 2012

Thoughts on the "corporate support" of Black History Month

In this highly competitive business world organizations both for profit or otherwise have come to recognize that they need all the business they can get and that embracing Black History Month makes good business sense. While this tactic may be beneficial to the the business organizations and the like I question whether - in the case of African-Americans and Canadians - such corporate support advances the objective that Black History Month sought to address.

As I understand it Black History Month was intended to educate the mainstream on the historical experience, accomplishments and contributions of people of African descent to society. The logic I see in this laudable goal is that in doing so the mainstream may come to understand the unique history of struggle, resistance and creativity of people of African descent. This educational process tends to break down barriers and bring about understanding and respect.

Much more remarkable than the contributions of people of African descent in North America and indeed worldwide is that they were able to succeed notwithstanding the hostile and oppressive conditions which were imposed upon them by the mainstream. Indeed, this is probably the most significant message that Black History Month ought to convey to the mainstream. It is a message which most of the corporate sponsors prefer to candycoat or simply avoid. The corporate sponsors of Black History Month appear more interested in Black History Month as a vehicle to increase market share than to educate and change perceptions. My dad always said, "all that glitters is not gold !"