Saturday, June 29, 2013

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 -

Wednesday, June 19, 2013

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."

Monday, June 17, 2013

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.


   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.




Thursday, June 13, 2013

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.