Mandela's Embrace by the Mainstream

      The recent passing of Mr. Nelson Mandela and the outpouring of public support while touching and without doubt well deserved left me with very mixed emotions.  As one who was able to see the righteousness in his cause from the outset -  the  mainstream's recognition of the legitimacy of his struggle and the justness of his cause raises a question in my mind that the greatest impediment to positive social change may be the mainstream itself.  When I graduated from Montreal's McGill University in 1986 and found my way to Toronto publications like the Toronto Sun were running articles where Mr. Mandela was openly referred to as a terrorist.  Later when I went on to law school at the University of Windsor I had countless heated discussions where some fellow students echoed similar sentiments about Mr. Mandela.  Indeed, the U.S.A. had Mr. Mandela on a terrorist watch list as late as 1998 or so.

     Of course - my faith in the mainstream is shaken even more when I consider that it was not very long ago that African-Americans in the United States of America were involved in there own struggle over  laws which deprived them of the right to vote and legal equality generally.  In that struggle - as in Mr. Mandela's struggle - there was one man who stood courageously and denounced those morally bankrupt laws - Rev. Martin Luther King Jr.  He too was imprisoned - albeit not to the extent that Mr. Mandela was.

     If we are to use the two above-referenced historical experiences as a gauge - they tend to reveal that both the Canadian and American mainstream (and others) suffer from a condition akin to that provided for in the insanity defence in criminal law.  The insanity defence in criminal law provides that  one who is suffering from a disease of the mind and can not appreciate the nature and quality of there actions is not criminally responsible for their conduct.  These two historical events show that the mainstream clearly appeared to be incapable of appreciating the moral  bankruptcy of both Jim Crow and Apartheid at the outset like myself and others.  In both instances it was not until after years and years of senseless killing and untold human suffering that they embraced both struggles and leaders as legitimate and heroic.  Why?  It is my sense that shame, embarrassment and what the social psychologists refer to as cognitive dissonance had more to do with this embrace than anything else.

ALERT: FORMER EMPLOYEES OF THE TOWN OF RICHMOND HILL AND SEA MEMBERS

   If you are a former employee of The Town of Richmond Hill and the terms and conditions of
your employment were purportedly covered by a "working agreement" between the Town of Richmond Hill and the Salaried Employees Association(SEA) and your employment was terminated in circumstances where you sought to grieve your dismissal and could not - I wish to speak to you.

   I am counsel to Mr. Compton Chance in an action in the Superior Court of Justice where this precise issue is raised in the action.(Court File No.CV-11-432083)  Mr. Chance attempted to grieve his unjust dismissal but was unable to.  The Chairperson of SEA told him and the employer that they could not take his case to arbitration since they have no money as the employer does not deduct dues from SEA members as it does with legitimate union members.  The SEA Chairperson stated that they have never taken a case to arbitration in the organization's 20 years of existence.

Contact:

Ernest J. Guiste
Trial & Appeal Lawyer
(416) 364-8908
E mail - ejguiste@yahoo.com

Punitive Damages Sought Against The Town Of Richmond Hill

     Former Parking Control Officer, Compton Chance, is seeking reinstatement, amongst other damages and $100,000 in punitive damages against his former employer The Town of Richmond Hill.  Mr. Chance's statement of claim asserts claims under the Human Rights Code as well as common law claims for intentional infliction of mental distress and wrongful dismissal.  The human rights portions of the clam assert the following claims against the Town of Richmond Hill:

"Age:  The Town's pattern and practice of harassment and discriminatory treatment escalated markedly once the Plaintiff applied for his CPP entitlement in June-July, 2009.  From that time until his dismissal he was falsely accused of improper conduct or poor performance on roughly six occasions."

"Race:  The Plaintiff asserts and the fact is that the Defendant Town consistently held him to a higher and differential standard of performance and general conduct that his white workmates."

"Religion:  The plaintiff asserts and the fact is that the Defendant Town condoned a work place in which it was common place to make jokes about his religious convictions without fear of discipline."

Punitive Damage Claim:

     Perhaps the most novel aspect of this claim is the fact that Mr. Chance's terms and conditions and employment were the subject of what the statement of claim refers to as a "sham agreement" between the Town of Richmond Hill and an organization coined the Salaried Employees Association(SEA).   Mr. Chance asserts the following material facts in his statement of claim on this point:

(8)  "The Plaintiff pleads and the fact is that the Town established and maintains the organization known in their workplace as the SEA - Salaried Employees Association as a means of defeating his rights pertaining to this employment with them at common law, the Employment Standards Act, Labour Relations Act and the Human Rights Code."

(9)   "The Town negotiates a sham agreement with the SEA and passes this documents off as a collective agreement with the SEA being the bargaining agent for the employees including himself.  However, in fact the SEA is totally controlled by the Town and it has no means to advocate on behalf of the employees it is supposed to represent."

(10)   "The Plaintiff pleads and the fact is that he attempted to assert his rights under the sham agreement described above to challenge his dismissal only to be told by Mr. Mario Da Silvo that the SEA does not have the financial means to litigate grievances and that in fact they never litigated a single grievance and consequently could not assist him against the Defendant's acts and omissions detailed herein."

(18)   "The Plaintiff asserts that the Defendant Town's handling of the allegations against him and their course of action in falsely accusing him of a lack of integrity was outrageous, irresponsible and with little or no regard for the Plaintiff and his well-being.  Further, their establishment of the SEA in order to systematically defeat his common law and statutory rights with respect to his employment is deserving of strong condemnation by the Court."

Defence:

     The Town of Richmond Hill has served and filed a Statement of Defence in the action denying all of the allegations made by Mr. Chance.  The allegations made by Mr. Chance in his Statement of Claim have yet to be proved in a court of law and should be the subject of trial in the Superior Court in due course.

Witnesses Sought:

     Anyone with material information regarding the allegations referred to above are asked to contact Ernest J. Guiste, Trial & Appeal Lawyer: (416) 364-8908 - E mail - ejguiste.rightslawyer@gmail.com



  

RACIAL PROFILING AND THE HRTO: The Jurisdiction Question

     In this my follow-up post on the question of the propriety of the HRTO adjudicating claims involving claims of racial profiling I assert that this inferior tribunal has no jurisdiction to deal with such claims when the police are executing their common and statutory law duties of enforcing the criminal law.  The argument is very succinct and is based on a plain reading of the word "services" in s.1 of the Human Rights Code, R.S.O. Ch H.19.  The following is what the Code provides:

Services

"Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry,  place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender express, age marital status, family status or disability."

What are "services" ?

     The Consise Oxford Dictionary provides some useful guidance on this point.  It states, "benefit conferred on or exertion made on behalf of someone .."  For example, as a lawyer I provide a service to my clients in the form of legal representation.  When I have a toothache I go to see my local dentist.  My local dentist provides a service to me in the form of assessing and treating my dental problem.  After a long hard day of court I may decide to go to my local Irish pub and have a pint of Guiness.  My local bartender provides a service to me in terms of listening to my chit-chat and pouring me a proper pint.  When I wore my hair in dreadlocks I regularly visited my hairstylist - who provided me a service of styling and grooming my hair.  I believe you see my point.  In all of these circumstances it is I who requests the service and the service-provider confers a benefit on me.

     In the context of racial profiling cases where the police actually arrest and charge a person it is simply unreasonable and wrong to suggest that this person is requesting a service.  On the other hand of the equation, the respondent police personnel do not ask this person - "how would you like to be arrested today- by way of take-down or voluntary submission ?  "Would you like to be held for a bail hearing or released on your own recognizance" ?  In my twenty some years of providing legal services this sort of interaction between police and defendants does not happen.

   It does not happen because the police are not providing any service to the defendant.  The police are executing their common and statutory powers of enforcing the criminal law.  During such encounters the defendant is protected by various fundamental common law and rights under the Canadian Charter of Rights and Freedoms which govern and dictate the nature and scope of the police personnel's acts and omissions. In assessing and evaluating the question of whether or not the defendant was discriminated against based on race one simply can not divorce the contextual nature of the interaction from the analysis as the HRTO has been known to do. (see for example Dungus  v.  Toronto Police Services Board 2011 HRTO 366)  The legality of the stop and the propriety of the criminal charge are all highly relevant to the question of whether or not the police acts and omissions were in part motivated by a racial animus.

     Now - this is not to say that there are never any circumstances in which the police can be brought into the definition of "services" under s.1 of the Code.  One which comes to mind is where someone calls the police for police assistance.  If the police refuse the call because the call was from a person of certain racial or religious group that would clearly engage s.1 of the Code.  The caller is requesting a service and the police are or are supposed to confer a benefit on the caller - that is respond to his or her call.

But - Mr. Guiste the Court of Appeal
heard Shaw  v. Phipps 2012 ONCA 155  !

     The fact the Court of Appeal for Ontario heard and ruled on the issue of racial profiling in Shaw   v.  Phipps 2012 ONCA 155 does nothing to detract from the argument advanced here.  That case involved a situation where a uniformed letter carrier of African-Canadian racial background was approached and investigated by police while doing his route in an upscale Toronto neighborhood.  Mr. Phipps was never charged criminally.  He was questioned but it is debatable as to whether one could find this to constitute an arrest.


NOTE:  This piece is written for the sole purpose of drawing attention to what is clearly and issue of public importance - the proper adjudication of racial profiling cases as I have defined that term elsewhere - i.e. where persons get arrested and charged criminally as a result of their race.  This is a matter for the Superior Court and not the HRTO as they are not equipped to adjudicate such claims and in doing so there is a concern that they may be doing more harm than good to the victims.

   

   

The HRTO and Racial Profiling: The Case for a Standard of Correctness on Judicial Review

     The advent of the Supreme Court of Canada's decision in Dunsumuir v.  New Brunswick [2008] 1 S.C.R. 190 has witnessed a new era of judicial deference to the decisions of administrative tribunals.  Lawyers, legal scholars and jurists alike have thrown themselves at the altar of political correctness to advocate this new era of judicial deference.  Gone are the days of preliminary questions going to jurisdiction(see for example Bell  v. OHRC and patent unreasonableness (see for example Cupe  v.  New Brunswick Liquor...).   Advocating for a standard of correctness in the review of administrative tribunals in Ontario and particularly the Human Rights Tribunal of Ontario (HRTO) at the Divisional Court is a steep, uphill climb for even the most able of advocates.  That is not to suggest that the Divisional Court has a closed mind on this subject.  They most clearly do not. (see for example - Pieters   v.  Peel Law Association 2012 ONSC 1048 )

     In this post it is my objective to demonstrate that this new-found deference to the decisions of administrative tribunals based on Dunsmuir(supra) is based on an incorrect interpretation of Dunsmuir (supra) and that with specific reference to the adjudication of cases involving racial profiling - as I have previously defined this term - by the HRTO that they must be held to a standard of correctness.  It is my contention that this legal conclusion is expressly prescribed by Dunsmuir (supra) and was not something "invented" by this blogger.

What does Dunsmuir really say ?

     Dunsmuir (supra) tells us that there are two standards of review: correctness and reasonableness.  This is what the Supreme Court of Canada said on the correctness standard:

     "When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer."

     On the other hand, Dunsmuir(supra) had this to say about reasonableness:

    "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable.  Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.  It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian system."

When is a correctness standard called for ?

     The Supreme Court of Canada tells us very clearly in Dunsmuir (Supra) that decision-makers like the HRTO and others must be held to a standard of correctness in the following three circumstances:  1. questions of law that are of central importance to the the legal system as a whole and outside the specialized area of expertise of the administrative decision maker; 2. questions regarding the jurisdictional lines between two or more competing specialized tribunals, and 3. constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867.

What is racial profiling ?

     Racial profiling or racial profiling/denial of equality as I prefer to call it refers to the law enforcement practice of using race as a basis to target individuals thereby violating their right to be left alone by the state unless there are reasonable grounds to interfere with the subject's person.   Racial profiling is not what transpired in the Pieters  v.  Peel Law Association case.  Racial profiling is where on account of one's race one is subjected to criminal liability and the loss of their liberty and other fundamental constitutional rights.  In Pieters  v.  Peel Law Association Mr. Pieters was subjected to humiliation and inconvenience but not to humiliation, possible bodily harm, loss of liberty and the possible stigma of a criminal record.

     Racial profiling in this context is clearly not within the area of expertise of the HRTO.  A proper adjudication of a racial profiling case in this context calls for a sound knowledge of the Criminal Code and criminal law generally along with a sound knowledge of the Charter of Rights and Freedoms and the fundamental rights it provides to individuals in the context of the enforcement of the criminal and quasi-criminal law.  How can we reasonably expect an HRTO adjudicator who knows nothing about the Criminal Code,  the Controlled Drugs and Substances Act or the Charter to properly adjudicate a case involving racial profiling in the context of street-level police under-cover drug operation ?  Without this fundamental knowledge the best that such an adjudicator can do is to make conclusionary and arbitrary findings supporting the police action or denouncing it.  Such a practice is dangerous because it makes for a conflict in our jurisprudence on racial profiling in the broader criminal context and deprives the litigants who chose that forum for adjudication of a fair hearing of their dispute on its merits.

      I have already written elsewhere about the lack of consistency and the absence of a serious policy position on discrimination and especially discrimination as it affects people of African descent at the HRTO.  A careful review of that tribunal's decisions shows that some adjudicators assess the credibility and reliability of evidence and some do not.(see for example Clennon  v  Toronto East General Hospital 2009 HRTO 1242 and McKay  v.  Toronto Police Service 2011 HRTO 499)  In adjudicating cases involving racial profiling as it is defined in this post some adjudicators refer to and apply binding authorities such as R  v. Brown and others do not. (see for example - Phipps  v.  Toronto Police Services Board et al 2009 HRTO 877 and Dungus  v.  Toronto Police Services Board et al  2010 HRTO 2419)  This is not acceptable on any reasonable standard.

Commentary:

     Adjudicators at the HRTO are simply not equipped to adjudicate issues involving racial profiling as that term is defined in this post.  The unfortunate but very real phenomenon of racial profiling by law enforcement in Ontario requires sound knowledge of the Criminal Code of Canada, the Controlled Drugs and Substances Act, the Canadian Charter of Rights and Freedoms and how these statutory enactments interact with the application and enforcement of the Criminal Law.  This area is clearly of general importance to the law generally and is outside of any expertise that the HRTO can be said to possess.  Accordingly, the HRTO must be held to a standard of correctness when adjudicating cases involving racial profiling and the application of the criminal law.


   
NOTE:  This pieces is written for the sole purpose of drawing public attention to an issue of public importance - the proper adjudication of claims of racial profiling by the HRTO and the proper and just development of the law on racial profiling.   I welcome your comments.
   








     

The Struggle for Religious Accommodation for Catholic Nurses at Markham Stouffville Hospital

     It was just over 14 years ago that I represented one of eight Roman Catholic obstetrical nurses in a case that reaffirmed to me why it is that I decided to become a lawyer.  Mr. Peter Jervis, a very able lawyer, who was at the time practicing with Lerners acted for the other seven and Ms. Naomi Overend represented the Ontario Human Rights Commission.  I will never forget the day Mrs. Aileen George sought my counsel in her struggle to obtain religious accommodation from performing pregnancy terminations in her work as a nurse in Markham Stouffville's Birthing Unit.  I was a new lawyer - having been called to the Ontario Bar some two or three years prior to our meeting.  As a lawyer it is one thing to be called upon to represent a client in a routine legal matter but a very honourable calling when called upon to seek a legal remedy for such a fundamental right as religious accommodation.  I was fired up !  However, never did I foresee the resistance that I experienced in trying to get Markham Stouffville Hospital to respect my client`s right to religious accommodation from performing pregnancy terminations.

     My client, Mrs. Aileen George, was a highly skilled obstetrical nurse working at the Scarborough Grace Hospital where they did not perform pregnancy terminations.  Markham Stouffville Hospital was a new hospital with a great need for experienced obstetrical nurses.  Accordingly, they actively recruited Mrs. George's immediate supervisor and had her bring a number of her subordinates with her.  Mrs. George maintained that she was recruited on an express representation that she would not be required to engage in pregnancy terminations.  It was my understanding that this representation was made to all the nurses and their  supervisor.  I confirmed this fact with a statement from the supervisor - who at the time of the litigation was retired.  As soon as she retired Markham Stouffville Hospital refused to accommodate my client and the other Roman Catholic nurses from pregnancy terminations.  All of the nurses brought human rights complaints to the OHRC alleging discrimination and harassment on the basis of religion.  However, only my client - sued civilly in addition to bringing a human rights complaint.

     Looking back on the case, the civil action which I brought on behalf of Mrs. George was a crucial tactical move in her case.  The claim was based on the hospital's negligent misrepresentation to Mrs. George that in giving up her job at Scarborough Grace she would receive greater compensation and not have to involve herself with pregnancy terminations.   Through this action I was able to obtain documentary production from both the hospital and the former supervisor despite the determined efforts of the hospital's counsel Mr. Joshua Liswood - then of Sawyers Liswood.  I will never forget the day I saved his junior, Ms. Frelick, from near death or very serious bodily injury.  Mr. Liswood sent her to resist my motion seeking production of relevant documents from the hospital with respect to my client's recruitment.  The motion was before the late Master Peppiatt - a very firm but fair judicial officer who was known to challenge counsel on the soundness of their positions.  Master Peppiatt began to question Mr. Frelick on her position in order to demonstrate to her that her position was not tenable.  Ms. Frelick turned pale and fainted.  She would have slammed her head on the counsel table had I not caught her.  Master Peppiatt granted my motion and awarded close to  $2,000 costs against Markham Stouffville Hospital.

     The cases went on for years.  Markham Stouffville Hospital appeared determined to "stick to their guns`` notwithstanding what appeared to me and other observers to be an indefensible position.  The cases did not settle until the human rights cases were scheduled for hearing before a Board of Inquiry.  Once at the Board of  Inquiry the parties engaged in some talks.  The parties settled.  Poor Mrs. George was offered reinstatement but she refused it.  She could not return after all the hurt.  Mr. Liswood was a different person at the Board of Inquiry.  He even offered me an invitation to watch the Jays at the Sky Dome with him.  To this very day I often wonder whether Markham Stouffville Hospital was touched by the spirit or whether it was their strategy to break the spirit of the Roman Catholic nurses. Markham Stouffville Hospital passed a religious exemption policy for pregnancy terminations that included not only the Catholic nurses but all medical staff.  This is just one in a series of cases in my legal career that have taught me that when your purpose is just you must never be intimidated by the social status or ``deep pockets`` of your adversary.

Note:  Rosie Di Manno of the Toronto Star wrote a very informative piece on Mrs. George's case at the time of the events referenced above.  The policy - http://www.consciencelaws.org/background/policy/institutions-002.aspx

Pope Francis' Message to the G8 Meeting

     The following are excerpts from a letter dated June 15th, 2013 by Pope Francis to The Right Honourable David Cameron on the occasion of the G8 Meeting:

"The actions included on the agenda of the British G8 Presidency, which point towards law as the golden thread of development - as well as the consequent commitments to deal with tax avoidance and to ensure transparency and responsibility on the part of governments - are measures that indicate the deep ethical roots of these problems, since, as my predecessor Benedict XVI made clear, the present global crisis shows that ethics is not something external to the economy, but is an integral and unavoidable element of economic thought and action."

"The long-term measures that are designed to ensure an adequate legal framework for all economic actions, as well as the associated urgent measures to resolve the global economic crisis, must be guided by the ethics of truth.  This includes, first and foremost, respect for the truth of man, who is not simply an additional economic factor, or a disposable good, but is equipped with a nature and a dignity that cannot be reduced to simple economic calculus.  Therefore concern for the fundamental material and spiritual welfare of every human person is the starting-point for every political and economic solution and the ultimate measure of its effectiveness and its ethical validity."

"Moreover, the goal of economics and politics is to serve humanity, beginning with the poorest and most vulnerable wherever they may be, even in their mothers' wombs.  Every economic and political theory or action must set about providing each inhabitant of the planet with the minimum wherewithal to live in dignity and freedom, with the possibility of supporting a family, educating children, praising God and developing one's own human potential.  This is the main thing; in the absence of such a vision, all economic activity is meaningless."

"In this sense, the various grave economic and political challenges facing today's world require a courageous change of attitude that will restore to the end (the human person) and to the means (economic and politics) their proper place.  Money and other political and economic means must serve, not rule, bearing in mind that, in a seemingly paradoxical way, free and disinterested solidarity is the key to the smooth functioning of the global community."

Pieters v. Peel Law Association: "Causal Nexus" ???

   Pieters   v.   Peel Law Association 2012 ONSC 1048 adds to increasing evidence tending to call into question the notion or maxim that justice is blind in Ontario.  African-Canadians in this province are subjected to a higher incidence of police stops and longer sentences for the same or similar crimes committed by non-African-Canadians concluded an inquiry commissioned by the Ministry of the Attorney General for Ontario. So pervasive and common place is the problem of discrimination against African-Canadians in the Ontario justice system that courts are now mandated by jurisprudence to take judicial notice of this reality of discrimination. (see R  v. Brown - R  v. Spence and others)

   There are two ways in which one can interpret the Divisional Court's ruling in Pieters (supra).  Advocates of the conventional wisdom would argue that the Court of Appeal's reversal of their decision (2013 ONCA 396) affirms that the system works.  On the other hand, it could be argued that the thrust of the Divisional Court's ruling was to rewrite or disregard long established legal authorities and incorporate a tort-type causation requirement in order to establish discrimination and effectively turn back the clock on human rights in Ontario.  The plain and simple effect of the Divisional Court's ruling was that in order to establish a prima facie case one must also establish a "causal nexus" between the discriminatory act and the prohibited ground.  This clearly is akin to the proximate cause requirement in negligence.  In negligence it is not enough that the plaintiff suffered harm.  The plaintiff must also establish that the act or omission of the defendant was the proximate - or "but for" cause.

   The Court of Appeal correctly rejected this attempt to change the law and wrote the following on this point:

[54]   The Court did not indicate from where it derived this test.  The term "causal nexus" does not appear in Tranchemontagne, which the Divisional Court cited before setting out this test.  The test is not one that human rights tribunals have traditionally applied.

[60]   I do not think it acceptable, however, to attach the modifier "causal" to "nexus".  Doing so seems to me to elevate the test beyond what the law requires.  The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause."

[61]    I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case.  This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination.

Commentary:

   This case illustrates the formidable impediments which ordinary Ontario residents face in asserting their rights under the Human Rights Code.  You win at the HRTO.  You lose at the Divisional Court.  However, when you lose you will more likely than not be ordered to pay costs which - if it does not bankrupt you - will no doubt impair your ability to assert your rights.  Based on the Divisional Courts own jurisprudence on costs the costs order of $20,000 against Pieters et al went beyond indemnifying the other party.  Costs for the successful party in Audmax Inc.  v. OHRT 2011 ONSC 315 was a little over $10,000.  I have in an earlier post published a reasonable Bill of Costs for such legal work.  The HRTO hearing in Audmax supra was 4 days compared to 3 days for Pieters.

   
 

   

 

Court of Appeal Overturns Divisional Court in Pieters v. Peel Law Association

    The Court of Appeal for Ontario has today released its
Reasons for Decision in the Peel Law Association racial
discrimination case. The Court unanimously overturned
the Divisional Court decision which dismissed the Ontario
Human Rights Tribunal decision finding that Peel Law
Association discriminated against Mr. Pieters and his
colleagues on the basis of their race.

    I will write a review of the case in the next couple of days.

How to limit employer liability when dismissing employees

     In my close to 20 years in litigating wrongful dismissal and human rights cases on behalf of employees I have come to the the conclusion that many of these cases could be avoided or resolved for a fraction of the post-litigation cost.  Litigation, like dismissal for cause, should be viewed by human resources professionals as a last resort.  In the ever increasingly competitive business world litigation is an inefficient manner of resolving  the vast majority of these disputes.  Here are a few points to keep in mind:

- Do not allege cause unless you have received sound legal advice;           

-  Do not assert acts amounting to crimes or breach of a human

rights statute unless you have conducted a fair and thorough
investigation in which the employee has had a meaningful
opportunity to participate;

- If litigation has commenced, do not hesitate to put in a reasonable
Rule 49 Offer to Settle promptly.  Pin-point the range of reasonable
notice and offer something a little over the lower end of the range.

Coaching Error on Time-out Led to Leaf's Failure

     The time-out is one of the most powerful tactical tools in a coach's arsenal in hockey.  The time-out provides both players and coaches on the team calling it an opportunity to step back from the immediate moment of the game and to draw their attention to where they are and what they wish to accomplish.  To draw from physics it effectively breaks the momentum in the play bringing it to a period of rest allowing for both physical and mental rejuvenation. For the opposing team the time-out means that the momentum which they had is lost and they must start again and attempt to recapture the momentum which they left off at.  From a psychological point of view - the time-out - has the ability to provide the team calling it with a fresh start and renewed focus.

     When a team is up 4-1 in the third period of game 7 of a best of 7 series and the other team starts to dominate the play the most sensible and effective strategy is to stop the play by way of a time-out.  This for some reason did not happen in the Leaf's game 7 game against Boston.  Instead Boston kept dominating and with each goal they scored their opponents became more anxious, more vulnerable and less confident.  The more the Bruins came on without any interruption in the play to communicate a positive message to the overwhelmed Maple Leafs the less they believed in themselves.  Once fear overcame the Maple Leafs it was all over.  The job of a coach or mentor is to remove impediments such as fear and anxiety from their players.  The coach is a motivator and the task of motivating does not end simply because your team is up 4 - 1 late in the third period.  

"Some of your best friends are gay and you don't even know it !"

     In the wake of the tremendous outpouring of admiration and support for NBA star Jason Collins on his coming out of the so called closet, I thought I would share with the readership my own personal experience with the concept of the closet, ignorance and homophobia.

The Closet:

     I was not always a tolerant and gay-friendly person.  I - like most individuals raised in a West-Indian and Catholic household was indoctrinated with a sense of morality which made homosexuals and homosexuality worthy of scorn, ridicule and isolation.  In my little world and by my simple mind homosexuality was a matter of choice.  They chose to be homosexuals so they opened themselves for scorn and ridicule.   In this climate fathers disowned sons.  Sons disowned fathers.  Mothers disowned their children. Brothers disowned sisters and vice versa.  Homosexuals - while we knew they existed - were forced into segregation and hiding.  The fear of losing family, friends and employment was so strong and compelling that homosexuals had to live "double lives" or "in the closet" as the concept has come to be phrased.

Ignorance:

     I came to learn firsthand the power of the closet and that ignorance is at the heart of homophobia.  Two of my closest friends Paul and Mary (not their real names) enjoyed a friendship with me which started during our days as students.  Peter and Mary were a couple and myself and anyone I was romantically involved with at the time would frequently socialized together.  I considered Paul and Mary to be among my closest friends.  I assumed that like myself they were heterosexual and that like myself they held homophobic views.  Accordingly, from time to time I uttered the odd homophobic slurs in their presence - "flamer", "fag", "batty-man" etc.  One day Mary looked me straight in the eye and said, "Ernest some of your best friends are gay and you don't even know it."  Those words and the stern and serious look in Mary's eyes when she uttered them were branded in my consciousness for eternity. This was the start of my awakening and enlightenment.

      Unknowing to me Paul and Mary and their relationship was a product of the closet.   Each of them had a public persona as "straight" and their private persona.  To their parents, family, friends and employers they felt compelled to wear the mask of "straightness" and to park their homosexuality far in the closet.  The consequences of being "outed" were so potentially devastating to their lives on virtually all fronts. Indeed, if their parents and family and friends were like me their election to stay in the closet makes perfect sense.

     In reflecting back on my experience with Paul and Mary I feel both shame and pride.  I feel shame in knowing that I uttered homophobic slurs and denigrated others out of ignorance.  As book-smart as I was I never took the time to analyze the issue for myself - electing instead to blindly follow what was the conventional wisdom.  On the other hand I feel pride in knowing that this experience has profoundly opened my mind and my heart and has made me a much better person.  I truly hope that in sharing my experience it may cause others in the community to re-evaluate their views on this issue.

     

Ontario's Fixation on Finality Unfairly Hurting Employees

     Once upon a time a dismissed employee who was not provided pay in lieu of notice had a right to file a complaint with the Employment Standards Branch of the Ontario Ministry of Labour and later bring a civil action for wrongful dismissal. In the human rights area a unionized employee whose rights under the Human Rights Code were violated by the employer or bargaining agent could find refuge at the Ontario Human Rights Commission.  Those rights or avenues for redress have been abolished. 

     It all started with a judgement by the Court of Appeal for Ontario - Rasanen  v.  Rosemount Instruments Limited (1993) (Ont.C.A.)  In Rasenen (supra) the employer was restructuring its operation and offered Mr. Rasenen two alternatives - a relocation to Calgary at the same status and pay or stay in Toronto in a lower status job with potentially higher pay - as the second job involved some commissions.  Mr. Rasenen rejected both options and resigned claiming constructive dismissal.  He then filed a claim for termination pay with the Ministry of Labour.  That claim ultimately went to a hearing where the Adjudicator ruled against him finding that he was not entitled to termination or severance pay because he resigned. 

     The majority in Rasenen (supra)  - Madame Justice Abella and Associate Chief Justice Morden, as he was then, ruled to dismiss the plaintiff, Mr. Rasanen's case, on the basis of issue estoppel.  Mr. Justice Carthy, who also dismissed the appeal, determined that issue estoppel did not apply in the circumstances but found that in the circumstances of the case the plaintiff was not contructively dismissed.  Mr. Justice Carthy's ruling and analysis rejecting the application of issue estoppel mirrors the fairness concerns expressed by the Supreme Court of Canada in Penner  v.  Niagara Region Police Service. 

     The Rasenen ruling put a clear chill in employees to make use of the remedial legislation which their elected officials had passed to provide them with basic terms and conditions of employment.  Fewer and fewer employees looked to the Ministry of Labour and elected to sue for wrongful dismissal.  Surprisingly, the Supreme Court of Canada makes note of this phenomenon in Penner  v.  Niagara Region Police Service.

The Codification of Issue Estoppel:

Employment Standards Act

     As if Rasanen was not bad enough the Ontario Government went on to amend the Employment Standards Act and the Human Rights Code to incorporate issue estoppel-type provisions.  The Employment Standards Act actually prohibits employees who bring a claim for termination pay etc. under the Act to bring a civil action seeking a remedy for the same dismissal.(see s.97(2))  In addition, the Act expressly provides that once an employee brings a claim under the Act they can only withdraw same within two weeks of the filing of the complaint. (see s.97(4))

Human Rights Code

     The amendments to the Human Rights Code incorporating issue estoppel-type provisions appear to be motivated by a desire for finality in legal proceedings.  Whether intentional or otherwise they appear to be depriving a significant group of workers their rights in both the collective bargaining forum and their stututory rights under the Human Rights Code.  Collective agreements are between a bargaining agent/union and an employer.  Accordingly, when a union and an employer make a "sweet-heart deal" to "resolve all of an employees grievances" they do not typically need the workers consent.  The worker, whose grievance has not been dealt with, then tries to bring a human rights complaint and is confronted by the following statutory provision:

"s.45.1 - The Tribunal may, in whole or in part, dismiss with an appllication in accordance with its Rules, if in its opinion, another proceeding has appropriately dealt with in the substance of the application."

     The legal effect of this statutory provision for workers covered by collective agreements is to render what ever individual rights they may have under the Human Rights Code purely illusory.  They have rights on paper but not in reality.  Our lawmakers have made the employer and the unions the gatekeepers of those rights.  They are at liberty to dispense them as they see fit.  Put another way - a worker with a human rights-type grievance has no rights that an employer or a union must respect and good luck taking the issue to the Divisional Court.  I invite readers to review the decisions of the HRTO involving unionized workers and their human rights complaints and any judicial review applications on this subject at our Divisional Court. The consistency of the dismissal of these complaints is troubling to say the least.





    



     

            

Issue Estoppel, Judicial Discretion and Access to Justice

    In this two part post I wish to shed some light on what appears to me to be a growing trend - the application of the doctrine of issue estoppel and judicial discretion which has the effect of denying individuals access to our courts.  In the first post I will look at the Supreme Court of Canada's recent decision in Penner   v.  Niagara Region Police Service with a view to illustrating the ideological ridgidity which more often than not renders the rights of the majority of Ontarians illusory when it comes to asserting their rights against police defendants.  In the second post I will illustrate how the Ontario Legislature has implemented issue-estoppel-type statutory enactments to the Employment Standards Act and the Human Rights Code which have the effect of denying a significant quantity of workers access to our courts.

     In Penner   v.  Niagara Region Police Service et al the Supreme Court of Canada recently ruled that the Ontario Court of Appeal erred in law in exercising its discretion when it upheld the dismissal of Mr. Penner's action on the basis of issue estoppel arising from the dismissal of his misconduct complaint under the Police Services Act.  The Court of Appeal applied the recognized test from Danyluk   v.  Ainesworth Technologies [2001] 2 S.C.R. 462; Minott   v.  O'Shanter (1999) 42 O.R. (3d) 321 (Ont.C.A.) and determined that the Police Services Act misconduct hearing and the action involved - 1.  the same question (parties agreed that the subject decision was final) and 3. same parties and found that the lower court had properly exercised its discretion in dismissing the action based on issue estoppel.  The Court of Appeal found that the motions judge erred in law in failing to consider the question of why it was not appropropriate to not apply issue estoppel in the case and went on to deal with this issue.

     The Court of Appeal - in applying a narrow and simplistic analysis as distinct from the broad and purpose-driven analysis employed by the Supreme Court of Canada - effectively denied Mr. Penner access to a remedy in the courts.  The key difference in the approach employed by the two levels of courts lies in the level of scrutiny they each subjected the Danyluk (supra) requirements to.  Unlike the Court of Appeal, the Supreme Court of Canada took the additional step and considered the nature and purpose of each legislative scheme along with the reasonable expectations of the parties.  In applying this approach the Supreme Court of Canada found that the Court of Appeal erred in the exercise of its discretion in appplying issue estoppel to the facts of this case on two grounds.  The first is found in the following quote from the Court of Appeal judgment on the issue of Mr. Penner's financial stake in the discipline proceeding:

Financial stake in the
Disciplinary Hearing:

     "This is an important consideration weighing against applying issue estoppel, but its
strength is diminished by the potential indirect benefit to Mr. Penner from the disciplinary proceedings.  If,  for example, the hearing officer had found that the two police officers did not have reasonable and probable grounds to arrest Mr. Penner or used excessive force on him, those findings would likely have estopped the officers from asserting otherwise in Mr. Penner's civil action.  In other words, issue estoppel works both ways." 

     The Supreme Court found that this analysis was flawed since the the Police Services Act requires misconduct to be "proved on clear and convincing evidence" while Mr. Penner's civil case must be proved on the lower balance of probabilities standard.  Accordingly, it did not follow that an acquittal under the higher standard could not lead to a finding of liability on the lower civil standard in Mr. Penner's civil action.

Role of the Chief of Police:

     Surprisingly, the Supreme Court went on to identify an additional ground which was not before the Court of Appeal in support of not applying the doctrine of issue estoppel in this case.  The Court noted that under the public complaints process of the PSA at the relevant time the Chief of Police appointed the investigator, the prosecutor and the hearing officer.  The Court reasoned that there was an inherent unfairness in employing the adverse decision from a discipline hearing held in these circumstances to absolve the Chief of Police and others from civil liability.  This is what the majority said on this point:

     [66] "Applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designate's decision had the effect of exonerating the Chief and his police service from civil liability.  In our view, applying issue estoppel here is a serious afront to basic principles of fairness."

Commentary:

     Justice must always be dispensed with a fair and even hand.  Anything less is not justice at all.  The exercise of judicial discretion like justice must always be exercised with a fair and even hand.  Depriving an individual access to our courts who seeks redress against the police for civil and constitutional wrongs allegedly committed against that individual simply because an inferior tribunal with a very different statutory function, purpose and level of proof dismissed his complaint is just plain wrong - fairness must always trump finality.  I believe this is precisely what the late Mr. Justice Bora Laskin meant when he said that "law without compassion is void."

    

Employer Checklist for Avoiding Punitive Damages

     It used to be that punitive damage awards in employment related cases was something that only happened in the U.S.  However, decisions such as Pate and MacNeil from the Court of Appeal for Ontario established that employers must be mindfull of the potential for such claims.  Here is a simple checklist of things to avoid.

1.     Avoid reporting criminal conduct to the police based on speculation or bad faith;

       Many employers are of the mistaken belief that simply reporting a crime to the police will not lead to potential civil liability.  This is not entirely correct.  An employer can be found to have initiated criminal proceedings even thought they did did swear the information charging the employee with a crime.  The question as to whether the employer can be found to have "initiated criminal proceedings" as that term is used in the malicious prosecution jurisprudence depends on whether the crime is of the type where the facts can be said to be pecuiliarly within the knowlede of the party seeking police assistance.  Courts have concluded that employers did not "initiate criminal proceedings" by mere reporting in cases involving complicated frauds requiring complex investigation in order to acertain the facts (Mahon   v.  Rahn [2000] 4 All E.R. 42).   

2.     Avoid asserting cause based on sexual or other forms of harassment in the absence of a fair and thorough investigation supporting the allegation - especially where your own polices call for such;

3.     Obtain legal advice touching on the strenght of the allegations of cause and the potential costs associated with an action from the employee prior to dismissal.  Where the allegations of cause involve criminal conduct you will want to consult with a lawyer with knowledge of criminal and tort law.
 

Most Serious Mistake Dismissed Employees Make

     The importance of getting legal advice following the termination of one's employment and prior to signing-off on a settlement can not be stressed enough.  All too often dismissed employees end up being bound by post-termination settlements which they often wish they had never pursued.  All too often it is too late to correct their error.  Sometimes this failure on the part of employees stems from their fear of the cost associated with getting legal advice.  In an effort to tackle this fear I thought it helpful to set out in plain language my fees for such consultation along with the service I provide for it.  I hope it is helpful.

Fee:

     $1,000 plus HST = $1,130 - payable at the visit.  In my experience it is common practice for bigger employers to indemnify employees for this cost.

Service provided:

Work history:

      I probe the client's work history in order to ascertain the reason for the termination of employment.  The reason is not always the reason stated by the employer.  If cause is
alleged I seek to ascertain in a preliminary way the strength of this cause.  Anyone can
assert cause but cause for dismissal requires cogent proof from the employer.  Have
there been warnings, performance appraisals, etc.  Does the company have an Employee
Handbook or similar document which sets out company policies on termination and
discipline ?  Was this policy followed ?  Does the nature of the cause alleged raise issues
of impairing your future employment opportunities?

Employment Standards Act:

     I probe compliance with the Employment Standards Act - termination pay, vacation pay and overtime pay.

Human Rights Codes:

     I also probe the possibility of the dismissal being motivated by a prohibited ground of discrimination - such as race, sex or age.

Jurisdiction:

     For employees covered by the Canada Labour Code - Part III - I inform them of the Unjust Dismissal provisions of that legislation.  It provides employees with a right similar to unionized workers in that they can be reinstated following a hearing before a Canada Labour Code Adjudicator.

Employment Insurance:

     Employees whose employment is terminated on account of "misconduct" are typically denied coverage.  I explain the process to employees in terms of what to expect and how to protect their right to benefits by communicating their version of the facts to the E.I. agent.  The agent is obligated to hear both sides of the dispute.  It is critical that the employee provides their side to the agent. If your claim is denied you have a right to an appeal hearing before a Board of Referees and be represented by a lawyer. I have often represented clients in these proceedings.

Disability Insurance etc.:

     For employees suffering with illness or disability at the time of the dismissal issues of coverage and medical treatment become paramount concerns.  I probe the cause of the disability and illness and provide advice on protecting what ever rights the employee may have.      


CONTACT INFO:

      I am available for consultation and would be pleased to assist you.  Here is my contact info:

Ernest J. Guiste, Trial & Appeal Lawyer, 2 County Court Blvd., Suite 494, Brampton, ON, L6W 3W8
Tel. (416) 364-8908

ERNEST J. GUISTE, TRIAL & APPEAL LAWYER - NEW LOCATION - MOVED

       My office is now located at:

2 COUNTY COURT BLVD., SUITE 494, BRAMPTON, ONTARIO, L6W 3W8.

Telephone and Fax numbers remain the same.

Tel.(416) 364-8908   - Fax (416) 364-0973

E Mail: ejguiste@yahoo.com


I will continue to represent clients in the following areas of practice:

- Criminal (LAO accepted)
- Employment - Human Rights
- Administrative law
- Personal Injury - and
- Insurance

Justice Kofi Barnes Elevated to Superior Court

      On Thursday, February 28th, 2013 Justice Kofi Barnes was sworn in as a Justice of the Superior Court of Ontario in a ceremony held at the Superior Court of Justice in Brampton.  Justice Barnes who was originally appointed to the Ontario Court of Justice in 2004 brings a wealth of knowledge in criminal law to the Superior Court in Brampton.      

Failure to address language impediment results in s.10(b) violation

      

 Section 10(b) of the Canadian Charter of Rights and Freedoms provides that;
 Everyone has the right on arrest or detention to be informed of;                    
 (b)  the right to retain and instruct counsel and to be informed of that right.


In R  v.  Soares 2013 O.J. No. 72 (Trotter J.) I had the opportunity to argue what I long observed to be a flagarent pattern and practice of police services in this province failing to discharge the constitutional duty placed on them to ensure that defendants whose language is not english are informed of their right to retain and instruct counsel. In fairness to the individual officers I must indicate that the problem is one rooted in the inadequacy of the training they are provided rather than any mala fides on their part as individuals. The genesis of the problem appears to stem from a mis-conception of precisely what is required to successfully discharge the state duty in preserving or giving meaning to this fundamental right.

It is not enough to simply "parot off" a statement written on the back of one's memobook and provide a defendant with a phone to call duty counsel.  This is especially so when it is evident that the defendant speaks a language other than english and is not fluent in english.  The right to counsel has two components.  The first is the right to retain and instruct counsel. This right is often popularly referred to as "right to a phone call".  The second and perhaps more significant right is the right to "to be informed of that right."  The first right can never be said to be granted unless the second right, namely, the right to be informed is properly discharged.  Accordingly, where a defendant has a clear deficiency in the english language it may be necessary for the officer to take affirmative steps by providing a translator to ensure that the defendant understands the right to counsel and can communicate and express himself properly.

In R  v.  Soares supra the defendant - whose mother tongue was Portuguese and spoke with an obvious accent and inability to express himself effectively in english was charged with a series of historical sex-related charges(roughly ten years old). The defendant was arrested at his home by two officers.  The arresting officer took a video-taped statement from him touching directly on the allegations which were the subject of his arrest and charge without any effort to ascertain his competence in the english language and whether a translator may be necessary for the purpose of her interrogation. 

I argued for the exclusion of the statement on the basis that the defendant's command of the language was deficient to the point where without an interpreter he could not exercise his right to counsel and decide whether or not to give the statement.  In addition to the defendant's obvious lack of comprehension when the officer used colloquial language or methaphors the trial judge referenced the following passage in concluding that the defendant's rights under s.10(b) were violated by the manner in which the officer conducted the interview:

[21]  Officer:   Okay.  But it is fair to say you're - you don't wanna - you don't wanna go into the details about it ?

Soares:  Please

Officer:  Why ?  Because it's too harto to talk about ?

Soares:  Is hard is like talking to you kow, is hard for me.  Plus my English not right - is no - no good - good - good enough

Officer:  Well I think we're - we're talking okay, here.  You - you've understood everything this morning that's happened.  But I understand if you don't wanna uh, discuss it any further too. So are are we done, are we - ?

Soares:  Yeah.                              

The Ruling:

[23]  In all of the circumstances, I found that Mr. Soares's rights under s. 10(b) of the Charter were infringed by the manner in which Ms. Peters conducted the interview.  It should have been clear from the outset, when the police first encountered Mr. Soares, that there was a language issue.  This should have prompted the arresting officers to inquire into Mr. Soare's facility with the English language:  R  v. Vanstceghem (1987) , 36 C.C.C. (3d) 142 (Ont.C.A.), at pp. 147-149.  If it was not apparent at the outset, it became crystal clear during the interview.  There were a number of times that language presented itself as an issue.  When Mr. Soares finally raised the issue himself, saying that his English was not good enough, instead of asking him if he would like an interpreter, Ms. Peters simply asserted that there was no problem, and then brought the interview to a speedy conclusion.

[26]   ....More fundamentally, in the context of a police interrogation, there is more to communication than just comprehension; an accused person must be able to participate in a meaningful way, expressing himself or herself effectively.  This was lacking in this case.

[32]  On the facts of this case, each of the Grant factors points in the direction of exclusion.  Accordingly, I find that the admission of the statement would bring the administration of justice into disrepute within the meaning of s.24(2) of the Charter.

JURIST - Paper Chase: Federal prosecutors file charges against Michigan Supreme Court justice

JURIST - Paper Chase: Federal prosecutors file charges against Michigan Supreme Court justice

This is what distinguishes America's legal system from all others.  In virtually every other jurisdiction this conduct is swept under the rug.  Why ?

Is YCJA Censorship Subject to Abuse ?

    The Youth Criminal Justice Act prohibits the publication of the name of persons charged and seals the court file from public scrutiny.  It is suggested by policy makers that this is desirable because young persons on account of their tender age, lack of experience and immaturity ought not to be stigmatized and disadvantaged by criminal prosecution.  Not only is the name of offenders shielded from publication by the YCJA but the names of the alleged victims are also shieded by some other public policy or statute depending on the alleged crime.  Accordingly, allegations involving sexual assault involving YCJA offenders are subject to even greater censorship.

     How sound is this public policy ?  In Toronto we have four major newspapers.  The primary source of their information regarding crime is the local police service or services.  The local police services are now all equipped with specialized media personnel - whose job it is to provide news to the media. 

     In cases involving YCJA offenders and sexual assault the media and the public are at the absolute mercy of the police with respect to the truth and accuracy of the story.  The media is prohibited from publishing the name of both the offender and victims.  If such a case does not come to trial the public has no way of knowing the facts.  The censorship imposed by the YCJA and public policy makes it possible for police services to charge a young person and then publize both the alleged attacks and the arrest.  Since the YCJA also prohibits the release of prosecution records and documents it is possible for a person to be "charged" and the fact of that "charge" publicized when in fact the person in question was not charged at all.  An improper spelling of the charged person's name or the wrong date of birth would mean that the person was not charged at all.  At the end of the day no one would ever know.