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.