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.
Thursday, February 23, 2012
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.
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 !"
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 !"
Tuesday, January 10, 2012
Punitive Damages Sought Against Future Shop/Best Buy
A top-performing General Manager was a model employee until on or about November 9th, 2006 when he was summarily dismissed from his position at Best Buy Canada Limited's (a.k.a Future Shop) flagship store in Newmarket, Ontario. His statement of claim issued in the Ontario Superior Court of Justice against the defendant asserts that he was "summarily and in bad faith terminated...under a cloud of false allegations of sexually harassing three female employees and allegedly failing to abide by the company's policy on this subject matter."
The former employee's claim against Best Buy asserts a significant legal point, namely, an employer's duty in negligence to investigate when dealing with sexual harassment allegations pursuant to their own policies and their potential liability for punitive damages for such failure to act.
Negligence:
The statement of claim states, "The Plaintiff pleads that the defendant employer owed him a duty of care in the circumstances to carry out a fair, thorough and impartial investigation of the allegations against him before condemning him and summarily dismissing on the grounds which they alleged, namely, sexual harassment and breach of the company policy and trust."
In essence the Plaintiff is asserting that since Future Shop/Best Buy had a policy on sexual harassment that prohibited such conduct in the work place along with a corresponding potential penalty of dimissal that they had a duty in negligence to conduct a fair, thorough and impartial investigation and failed to do so.
Breach of Duty:
The former General Manager's statement of claim "asserts that the defendant breached the duty of care owed to him by virtue of the following acts and omissions:
1. Failed to articulate or implement a policy or directive on the
conduct of the investigation of sexual harassment allegations
in their work place;
2. Failed to provide adequate training for its workers whe are
responsible for the implementation of the policy;
3. Failed to establish or implement criteria to test credibility
and reliability of interview results;
4. Failed to record investigation interviews;
5. Failed to take statements under oath or penalty of perjury;
6. Failed to follow the principle of natural justice in their
investigation;
7. Failed to follow and live up to its own written policies.
Punitive Damages:
In support of his claim for punitive damages the plaintiff asserts in his statement of claim that Best Buy lacked "a fair and impartial mode of investigation to ascertain reliability or truthfulness of alleged violations" and made "a conscious and deliberate decision that it was more efficient to simply dismiss individuals accused of breach of their policy than to provide a mechanism for a fair and impartial investigain of the allegations".
Defence:
"Future Shop denies the allegations in paragraphs 6 and 7 of the Statement of Claim that it failed to carry out a thorough, fair and impartial investigation into the sexual harassment allegations brought against the Plaintiff."
"Best Buy denies that the Plaintiff is entitled to punitive and or aggravated damages and submits that this claim is without foundation."
Trial:
The claims advanced by the former employee and the defences asserted by the defendant have yet to be adjudged by a court. It is anticipated that the matter will be tried in the Ontaro Superior Court Justice on October 8th, 2012 in Toronto.
Witnesses sought:
I wish to speak to individuals having specific knowledge on the following points in preparation for the upcoming trial:
1. Former District Manager, Mr. John Amendola and former human resources manager, Ms. Olga Afinec conducted the sexual harassment investigation which led to the Plaintiff's dismissal. Anyone having any information of their whereabouts is asked to contact me as soon as possible or have them contact me;
2. Mr. Fadi Azziz is said to have communicated the complaint to managment. Anyone having any information of his whereabout is asked to contact me as soon as possible or have him contact me;
3. Anyone who worked at Future Shop (Newmarket)in an around November,2006
and has personal knowledge of the harassment allegations and dismissal; and
4. Anyone who has been dismissed in similar circumstances to the Plaintiff by Future Shop/Best Buy and denied payment of entitlement under their Share-Ownership Plan.
*Note: The claim in question involves Court File No.CV-10-003944690000
Persons with information are invited to contact Ernest J. Guiste at (416) 364-8908 or by e mail - ejguiste.rightslawyer@gmail.com.
The former employee's claim against Best Buy asserts a significant legal point, namely, an employer's duty in negligence to investigate when dealing with sexual harassment allegations pursuant to their own policies and their potential liability for punitive damages for such failure to act.
Negligence:
The statement of claim states, "The Plaintiff pleads that the defendant employer owed him a duty of care in the circumstances to carry out a fair, thorough and impartial investigation of the allegations against him before condemning him and summarily dismissing on the grounds which they alleged, namely, sexual harassment and breach of the company policy and trust."
In essence the Plaintiff is asserting that since Future Shop/Best Buy had a policy on sexual harassment that prohibited such conduct in the work place along with a corresponding potential penalty of dimissal that they had a duty in negligence to conduct a fair, thorough and impartial investigation and failed to do so.
Breach of Duty:
The former General Manager's statement of claim "asserts that the defendant breached the duty of care owed to him by virtue of the following acts and omissions:
1. Failed to articulate or implement a policy or directive on the
conduct of the investigation of sexual harassment allegations
in their work place;
2. Failed to provide adequate training for its workers whe are
responsible for the implementation of the policy;
3. Failed to establish or implement criteria to test credibility
and reliability of interview results;
4. Failed to record investigation interviews;
5. Failed to take statements under oath or penalty of perjury;
6. Failed to follow the principle of natural justice in their
investigation;
7. Failed to follow and live up to its own written policies.
Punitive Damages:
In support of his claim for punitive damages the plaintiff asserts in his statement of claim that Best Buy lacked "a fair and impartial mode of investigation to ascertain reliability or truthfulness of alleged violations" and made "a conscious and deliberate decision that it was more efficient to simply dismiss individuals accused of breach of their policy than to provide a mechanism for a fair and impartial investigain of the allegations".
Defence:
"Future Shop denies the allegations in paragraphs 6 and 7 of the Statement of Claim that it failed to carry out a thorough, fair and impartial investigation into the sexual harassment allegations brought against the Plaintiff."
"Best Buy denies that the Plaintiff is entitled to punitive and or aggravated damages and submits that this claim is without foundation."
Trial:
The claims advanced by the former employee and the defences asserted by the defendant have yet to be adjudged by a court. It is anticipated that the matter will be tried in the Ontaro Superior Court Justice on October 8th, 2012 in Toronto.
Witnesses sought:
I wish to speak to individuals having specific knowledge on the following points in preparation for the upcoming trial:
1. Former District Manager, Mr. John Amendola and former human resources manager, Ms. Olga Afinec conducted the sexual harassment investigation which led to the Plaintiff's dismissal. Anyone having any information of their whereabouts is asked to contact me as soon as possible or have them contact me;
2. Mr. Fadi Azziz is said to have communicated the complaint to managment. Anyone having any information of his whereabout is asked to contact me as soon as possible or have him contact me;
3. Anyone who worked at Future Shop (Newmarket)in an around November,2006
and has personal knowledge of the harassment allegations and dismissal; and
4. Anyone who has been dismissed in similar circumstances to the Plaintiff by Future Shop/Best Buy and denied payment of entitlement under their Share-Ownership Plan.
*Note: The claim in question involves Court File No.CV-10-003944690000
Persons with information are invited to contact Ernest J. Guiste at (416) 364-8908 or by e mail - ejguiste.rightslawyer@gmail.com.
Tuesday, October 18, 2011
JUSTICE KARAKATSANIS - A SOUND CHOICE FOR SUPREME COURT
Madame Justice Karakatsanis of the Court of Appeal for Ontario is an excellent choice for appointment to the nation's highest court. I do not know her personally but I had the pleasure of arguing two cases before her - one a medical malpractice on a question of law motion brought by the defendant doctor and the other an application on a guns and gangs prosecution styled "Operation Flicker". On each occasion I was impressed by her ability to zero-in on the crux of the legal problem, her ability to ensure that counsel understood the point and to insert common-sense and compassion in her adjudication process.
In the medical malpractice matter I acted for the plaintiff who brought an action against a doctor and a hospital for breach of confidence and negligence based on the doctor's improper disclosure of the nature and type of medical procedures which the plaintiff underwent. Counsel for the defendant doctor brought a motion on the premise that since the doctor was not the plaintiff's doctor he owed her no duty of care and hence the plaintiff had no claim. Justice Karakatsanis pointed out that the action is based both in negligence and breach of confidence. She politely asked counsel for the doctor, "Are you suggesting to me that if I had surgery at TEGH and your client - a surgeon - found out what I had that he could tell the whole word because I do not have a doctor-patient relationship with him ?" Counsel for the doctor replied yes. Justice Karakatsanis proceeded to dismiss the doctor's motion with costs. No appeal was taken by the doctor.
In the guns and gangs case I was acting for an alleged gang member whom the immigration authorities and the Crown sought to deport to his homeland followng the proceedings. I brought an application before Justice Karakatsanis seeking a stay of the proceedings based on the Crown's improper disclosure of sensitive and confidential information regarding the client which had the potential to put his life at risk should he be deported to his homeland. Once again, Justice Karakatsanis recognized the seriousness of the issue, listened attentively to evidence I led in support of the application and fashioned a unique and pragmatic remedy. Althought she dismissed my application for a stay of proceedings she wrote a strong and comprehensive judgement in which she specifically recommended that the immigration authorities refrain from deporting my client.
In the medical malpractice matter I acted for the plaintiff who brought an action against a doctor and a hospital for breach of confidence and negligence based on the doctor's improper disclosure of the nature and type of medical procedures which the plaintiff underwent. Counsel for the defendant doctor brought a motion on the premise that since the doctor was not the plaintiff's doctor he owed her no duty of care and hence the plaintiff had no claim. Justice Karakatsanis pointed out that the action is based both in negligence and breach of confidence. She politely asked counsel for the doctor, "Are you suggesting to me that if I had surgery at TEGH and your client - a surgeon - found out what I had that he could tell the whole word because I do not have a doctor-patient relationship with him ?" Counsel for the doctor replied yes. Justice Karakatsanis proceeded to dismiss the doctor's motion with costs. No appeal was taken by the doctor.
In the guns and gangs case I was acting for an alleged gang member whom the immigration authorities and the Crown sought to deport to his homeland followng the proceedings. I brought an application before Justice Karakatsanis seeking a stay of the proceedings based on the Crown's improper disclosure of sensitive and confidential information regarding the client which had the potential to put his life at risk should he be deported to his homeland. Once again, Justice Karakatsanis recognized the seriousness of the issue, listened attentively to evidence I led in support of the application and fashioned a unique and pragmatic remedy. Althought she dismissed my application for a stay of proceedings she wrote a strong and comprehensive judgement in which she specifically recommended that the immigration authorities refrain from deporting my client.
Sunday, August 28, 2011
Jack Layton
Canadians lost a great human being in Jack Layton. Though I did not know him personally - I felt his warmth, sincerity and conviction for social justice for working people. I remember the pride and sense of hope that his recent performance in the federal election caused me to feel. Like so many of us I had become cynical and withdrawn from the process which always seemed to disappoint us. When Jack Layton became the leader of the Official Opposition it brought home to me the old message that freedom is never given to the oppressed by the oppressor but it must be won by the oppressed. Mr. Layton demonstrated to me with his recent election performance that change and a society founded on social justice and equality for all is within our grasp.
Thursday, August 25, 2011
Incivility as Professional Misconduct
No one - including myself - would suggest that civility is not a desirable goal or objective in the delivery of legal services. Civility is a desirable goal or objective in all human endeavour even war. The concern with respect to prosecuting lawyers for incivility is not founded on the premise that civility has no place in the work of lawyers. Rather it is founded on a deep and well-founed fear that unless the rules and standards of civility are carefully tailored so as not to impair fundamental rights such as confidentiality and the lawyer's duty to vigorously defend the accused they are not in the client's best interest to the extent that they interfere with the discharge of the lawyer's duty to the client. In this short piece I wish to delineate some of the issues and problems involved in enforcing civility as professional misconduct among lawyers.
What is the offence ?
The range of behaviour that can be characterized as incivil in the conduct of litigation is not only broad but also very subjective. Stating to another lawyer in a letter that he is speaking nonesense in an effort to tell him that his anticipated motion is untenable has been found to be incivil behaviour. This is so even if the recipient of the letter takes no issue with its contents. Informing another lawyer in an e mail that one's client is not a "cash-cow" and consequently one must be pragmatic in the handlying of the litigation has also been found to be incivil behaviour.(see LSUC v. Guiste) Again, the finding of misconduct was made even though the complaining lawyer did not include it in his initial complaint which the Society closed with a caution. The e mail was included after the complaining lawyer was dissatisfied with the penalty imposed and appealed the initial dispositon.
What is the fault requirement?
Not only is the range of behaviour which can constitute this offence very broad but the recent holding in LSUC v. Guiste and the current prosecution of Mr. Joseph Groia suggests that it is a strict liability offence. A strict liability offence as distinct from a fault based or mens rea offence is one which is complete by the very act itself. The defendant's state of mind is not a factor in the question of whether or not the offence was committed. It is like a parking violation.
Confidentiality agreements
and occasions of privillege:
In LSUC v. Guiste two of the charges stemmed from conduct which took place in the context of a mandatory mediation session under the Rules of Civil Procedure where all of the participants signed a confidentiality agreement. That confidentiality agreement stated the following:
"The entire procedure will be confidential. All conduct,
statements, promises, offers, views and opinions, whether
oral or written, made in the course of the mediation
by any of the parties, their agents, employees,
representatives or other invitees to the mediation by the
mediator, who is the parties' joint agent for purposes of
these compromise negotiations, are confidential and shall,
in addition and where appropriate, be deemed to be attorney
client privilleged. Such conduct, statements, promises,
offers, views and opinions shall not be discoverable or
admissible for any purposes, including impeachment, in any
litigation or other proceedings involving the parties and
shall not be disclosed to anyone not an agent, employee,
expert, witness, or representative of any of the parties.
However, evidence otherwise discoverable or admissible in a
a later proceeding is not excluded from discovery or
admission as a result of its use in the mediation. If not
entirely enforceable, the parties intend that the court
enforce this provision to the extent enforceable by such
court."
Following the opening by employer counsel I admittedly lost my composure and stated words to the following:
- "you can take that offer and shove it up your ass";
- "you don't have to grab a tit for it to be sexual
harassment"; and
- I stated "fuck" a few times.
At my hearing I testified that I made those statements because counsel for the employer had in fact written me in advance of the mediation with a range of settlement which exceeded his offer at mediation. In addition, counsel for the employer suggested in his opening statement at the mediation that in fact no sexual harassment took place and there was never any physical contact.
Defence rejected:
The defence to these specific charges was three-prong. Firstly, the communication occurred on a recognized occasion of privillege under the common law. Secondly, the confidentiality agreement expressly covered the communication as it focussed on the offer and what constituted sexual harassment. Thirdly, that I had an honest belief that my speech was protected by the occasion and the agreement. I sought to present the panel with expert testimony on the standard of conduct at such mediation sessions and the panel refused this evidence on the liability phase of the hearing. The proffered expert testimony suggested that this sort of speech was not out of the norm in the context of sexual harassment cases.
Mediation related
charges:
Once again, I am not proud of the language I employed at the mediation session. I wish this point to be crystal clear. I have appologized to the recipients and I know it shall never happen again. However, my objective here is merely to contribute to a discourse which I see as one of public importance - namely - the regulation of the speech of lawyers and their duty to defend. The real question is this. Would the result from a prosecutorial point of view been different had I stated the following:
- "your underhanded attempt to cause my client to lose confidence in me is noted and not appreciated - sir"
- "sir - your suggestion that only a sexual assault will
constitute sexual harassment in the workplace illustrates
and confirms your ignorance of the subject matter. We shall try this case in a court of law. Mediation is not the forum".
I submit that the above-noted language would result in the same charges and likely the same result - assuming the current strict liability fault requrement for the offence. Here the use of the words underhanded and ignorant could be characterized as a "personal attack" on the other lawyer's professional integrity and competence. In the face of a strict liability offence the offence results from the mere statements without regard to truth or context. Therein lies the problem. The lawyer's ability to speak frankly and forcefully on what he or she perceives to be underhanded conduct by his or her opponent is capable of being censored by such an offence.
Judge initiated complaints:
In June, 2010 His Honour Justice Bassel of the Ontario Court of Justice summoned me to appear before him at Old City Hall to explain my non-attendance on four judicial pre-trials(jpt) which he mistakenly understood me to have missed. I attended and attempted to explain to him that his facts were in error and that I failed to attend two jpts - one in which I called and informed the authorities and the other I acknowledged before him that I failed to attend on account of inadvertence. For some reason His Honour Justice Bassel did not accept or seem to understand my explanation. He forcefully suggested that my non-attendances inconvenienced counsel for a co-accused and that I owed him an appology. I was charged with the following offences stemming from this incident:
1. failing to treat the Court with courtesy and respect
by my submissions;
2. failing to treat the court with courtesy and respect by
my failure to stand when addressing the court;and
3. failing to treat the court with courtesy and respect by
failing to attend at two judicial pre-trials.
The second charge above was withdrawn by the prosecutor at the hearing. The panel dismissed the third charge finding that I did indeed notify the court of one of the attendances and the other was on account of inadvertence since a staff member of my office was ill and failed to note the date in my book. The first charge was based on submissions recorded in a transcript of my attendance before His Honour Judge Bassel. One of them was the following:
"If you been in private, private practice, Your Honour,
you would know that you employ a clerk, I employ a
student-at-law. The student-at-law appeared for a number of
initial dates."
Context is critical when seeking to punish a lawyer for their words or conduct in the context of advocacy. The above passage standing alone could be interpreted by some to be a showing of disrespect. However, a look at the entire utterance may be interpreped very differently - although the discipline panel found differently:
"If you've been in practice, private practice, Your Honour, you would know that you employ a clerk. I employ a student-at-law. The student-at-law appeared on a number of the initial dates and this date had been brought to my office's attention. She wrote a letter, as is in accordance with her obligation. The letter is signed by her. We can enter this, a copy of this, as an exhibt. She even called the client and advised him; but as I indicated, between then, in aand around the 22nd, she was in hospital, she was away from work, she had pheumonia. She came back I believe either the 30th or the 1st of July of last week there and she not inscribe that entrey in my book. It's not uncommon for counsel to overlook or not be aware. I'm not saying that it's not a serious matter. It's very serious. However, that is my explanation. I inadvertantly...failed to be aware that I had this date, and the reason for this is my clerk did not bring it to my attention. She was away, the student was also away and, therefore, I was not aware."
Later on the transcript reveals that I stated to the judge words to the effect that I don't know who this lawyer is and that I don't know if he is some sort of Johnney Cochrane come lately or something that entitles him to greater respect than other lawyers. I had already acknowledged my wrong-doing and appologized. Justice Bassel stated that it was his view that I was sarcastic and disrespectful to Mr. Robbins and the court. Mr. Robbins had no issue with me and never in fact complained about me. He was not even present when I made the utterance. The same trancript contains the following statement on the record:
"If I could, I just wanted to address one more point, Your Honour. I just wanted to say, Your Honour, that with respect to Mr. Robbins, you indicated that it was disrespectfull when I indicated my comment about whether was some sort of Johnny Cochrane come lately or something. I didn't mean that as a disrespect to him, but it just occurred to me that somehow I got the impression that because it was Mr. Robbins, it seemed like it was a greater wrong and I've acknowledged my wrongdoing and indicated that I accept that, yes, I was wrong, and so my statement was not intended to be disrespectful of you, disrespectful of the Court, but it just seemed to me that it conveyed the impression that somehow some lawyers are somehow deserving of greater respect than others and that's why I responded in that way."
Commentary and Analysis:
There is no doubt that civility amongst lawyers in the delivery of legal services to the public is a desirable goal. The problem is that in seeking to prosecute lawyers for incivility we run the risk of tampering with established legal principles such as the confidentiality of settlement discussions and the duty to defend. Indeed, the very issue of confidentiality arose at the penalty phase hearing on June 24th, 2011 when counsel for Novopharm asked the prosecutor to ask the panel to expunge parts of my testimony where the quantum of the ultimate settlement was discussed. The purpose of that specific evidence was to explain my acts and omissions and provide context to them. My consent was requested for such an order by the panel.
Any law or regulation which has as its objective to regulate the speech or conduct of a lawyer in the execution of their duty must be carefully tailored so as to interfere as little as possible with the principle of confidentiality and the duty to defend. Such a law or regulation can not be a strict liability offence because such an offence could not reasonably be said to impair the lawyer's duty to defend as little as possible. Language and a judge's pronoucement in a transcript is open to interpretation. The words of the Supreme Court of Canada in Young v. Young is highly relevant to the civility issue and I quote it below:
"But the fault that might give rise to a costs
award against Mr. How does not characterize
these proceedings, despite their great length
and acrimonious progress. Moreover, courts must
be extreamly cautious in awarding costs personally
against a lawyer, given the duties upon a lawyer to
guard confidentiality of instructions and to bring
forward with courage even unpopular causes. A lawyer
should not be placed in a situation where his or her
fear of an adverse order of costs may conflict with
these fundamental duties of his or her calling."
NOTE: This piece is written for the sole purpose of shedding light on an issue of obvious public importance - namely - the regulation of a lawyer's speech and conduct in the execution of their duty as advocates for clients. The Rule of Law and democracy works best when we allow for a free exchange of ideas.
What is the offence ?
The range of behaviour that can be characterized as incivil in the conduct of litigation is not only broad but also very subjective. Stating to another lawyer in a letter that he is speaking nonesense in an effort to tell him that his anticipated motion is untenable has been found to be incivil behaviour. This is so even if the recipient of the letter takes no issue with its contents. Informing another lawyer in an e mail that one's client is not a "cash-cow" and consequently one must be pragmatic in the handlying of the litigation has also been found to be incivil behaviour.(see LSUC v. Guiste) Again, the finding of misconduct was made even though the complaining lawyer did not include it in his initial complaint which the Society closed with a caution. The e mail was included after the complaining lawyer was dissatisfied with the penalty imposed and appealed the initial dispositon.
What is the fault requirement?
Not only is the range of behaviour which can constitute this offence very broad but the recent holding in LSUC v. Guiste and the current prosecution of Mr. Joseph Groia suggests that it is a strict liability offence. A strict liability offence as distinct from a fault based or mens rea offence is one which is complete by the very act itself. The defendant's state of mind is not a factor in the question of whether or not the offence was committed. It is like a parking violation.
Confidentiality agreements
and occasions of privillege:
In LSUC v. Guiste two of the charges stemmed from conduct which took place in the context of a mandatory mediation session under the Rules of Civil Procedure where all of the participants signed a confidentiality agreement. That confidentiality agreement stated the following:
"The entire procedure will be confidential. All conduct,
statements, promises, offers, views and opinions, whether
oral or written, made in the course of the mediation
by any of the parties, their agents, employees,
representatives or other invitees to the mediation by the
mediator, who is the parties' joint agent for purposes of
these compromise negotiations, are confidential and shall,
in addition and where appropriate, be deemed to be attorney
client privilleged. Such conduct, statements, promises,
offers, views and opinions shall not be discoverable or
admissible for any purposes, including impeachment, in any
litigation or other proceedings involving the parties and
shall not be disclosed to anyone not an agent, employee,
expert, witness, or representative of any of the parties.
However, evidence otherwise discoverable or admissible in a
a later proceeding is not excluded from discovery or
admission as a result of its use in the mediation. If not
entirely enforceable, the parties intend that the court
enforce this provision to the extent enforceable by such
court."
Following the opening by employer counsel I admittedly lost my composure and stated words to the following:
- "you can take that offer and shove it up your ass";
- "you don't have to grab a tit for it to be sexual
harassment"; and
- I stated "fuck" a few times.
At my hearing I testified that I made those statements because counsel for the employer had in fact written me in advance of the mediation with a range of settlement which exceeded his offer at mediation. In addition, counsel for the employer suggested in his opening statement at the mediation that in fact no sexual harassment took place and there was never any physical contact.
Defence rejected:
The defence to these specific charges was three-prong. Firstly, the communication occurred on a recognized occasion of privillege under the common law. Secondly, the confidentiality agreement expressly covered the communication as it focussed on the offer and what constituted sexual harassment. Thirdly, that I had an honest belief that my speech was protected by the occasion and the agreement. I sought to present the panel with expert testimony on the standard of conduct at such mediation sessions and the panel refused this evidence on the liability phase of the hearing. The proffered expert testimony suggested that this sort of speech was not out of the norm in the context of sexual harassment cases.
Mediation related
charges:
Once again, I am not proud of the language I employed at the mediation session. I wish this point to be crystal clear. I have appologized to the recipients and I know it shall never happen again. However, my objective here is merely to contribute to a discourse which I see as one of public importance - namely - the regulation of the speech of lawyers and their duty to defend. The real question is this. Would the result from a prosecutorial point of view been different had I stated the following:
- "your underhanded attempt to cause my client to lose confidence in me is noted and not appreciated - sir"
- "sir - your suggestion that only a sexual assault will
constitute sexual harassment in the workplace illustrates
and confirms your ignorance of the subject matter. We shall try this case in a court of law. Mediation is not the forum".
I submit that the above-noted language would result in the same charges and likely the same result - assuming the current strict liability fault requrement for the offence. Here the use of the words underhanded and ignorant could be characterized as a "personal attack" on the other lawyer's professional integrity and competence. In the face of a strict liability offence the offence results from the mere statements without regard to truth or context. Therein lies the problem. The lawyer's ability to speak frankly and forcefully on what he or she perceives to be underhanded conduct by his or her opponent is capable of being censored by such an offence.
Judge initiated complaints:
In June, 2010 His Honour Justice Bassel of the Ontario Court of Justice summoned me to appear before him at Old City Hall to explain my non-attendance on four judicial pre-trials(jpt) which he mistakenly understood me to have missed. I attended and attempted to explain to him that his facts were in error and that I failed to attend two jpts - one in which I called and informed the authorities and the other I acknowledged before him that I failed to attend on account of inadvertence. For some reason His Honour Justice Bassel did not accept or seem to understand my explanation. He forcefully suggested that my non-attendances inconvenienced counsel for a co-accused and that I owed him an appology. I was charged with the following offences stemming from this incident:
1. failing to treat the Court with courtesy and respect
by my submissions;
2. failing to treat the court with courtesy and respect by
my failure to stand when addressing the court;and
3. failing to treat the court with courtesy and respect by
failing to attend at two judicial pre-trials.
The second charge above was withdrawn by the prosecutor at the hearing. The panel dismissed the third charge finding that I did indeed notify the court of one of the attendances and the other was on account of inadvertence since a staff member of my office was ill and failed to note the date in my book. The first charge was based on submissions recorded in a transcript of my attendance before His Honour Judge Bassel. One of them was the following:
"If you been in private, private practice, Your Honour,
you would know that you employ a clerk, I employ a
student-at-law. The student-at-law appeared for a number of
initial dates."
Context is critical when seeking to punish a lawyer for their words or conduct in the context of advocacy. The above passage standing alone could be interpreted by some to be a showing of disrespect. However, a look at the entire utterance may be interpreped very differently - although the discipline panel found differently:
"If you've been in practice, private practice, Your Honour, you would know that you employ a clerk. I employ a student-at-law. The student-at-law appeared on a number of the initial dates and this date had been brought to my office's attention. She wrote a letter, as is in accordance with her obligation. The letter is signed by her. We can enter this, a copy of this, as an exhibt. She even called the client and advised him; but as I indicated, between then, in aand around the 22nd, she was in hospital, she was away from work, she had pheumonia. She came back I believe either the 30th or the 1st of July of last week there and she not inscribe that entrey in my book. It's not uncommon for counsel to overlook or not be aware. I'm not saying that it's not a serious matter. It's very serious. However, that is my explanation. I inadvertantly...failed to be aware that I had this date, and the reason for this is my clerk did not bring it to my attention. She was away, the student was also away and, therefore, I was not aware."
Later on the transcript reveals that I stated to the judge words to the effect that I don't know who this lawyer is and that I don't know if he is some sort of Johnney Cochrane come lately or something that entitles him to greater respect than other lawyers. I had already acknowledged my wrong-doing and appologized. Justice Bassel stated that it was his view that I was sarcastic and disrespectful to Mr. Robbins and the court. Mr. Robbins had no issue with me and never in fact complained about me. He was not even present when I made the utterance. The same trancript contains the following statement on the record:
"If I could, I just wanted to address one more point, Your Honour. I just wanted to say, Your Honour, that with respect to Mr. Robbins, you indicated that it was disrespectfull when I indicated my comment about whether was some sort of Johnny Cochrane come lately or something. I didn't mean that as a disrespect to him, but it just occurred to me that somehow I got the impression that because it was Mr. Robbins, it seemed like it was a greater wrong and I've acknowledged my wrongdoing and indicated that I accept that, yes, I was wrong, and so my statement was not intended to be disrespectful of you, disrespectful of the Court, but it just seemed to me that it conveyed the impression that somehow some lawyers are somehow deserving of greater respect than others and that's why I responded in that way."
Commentary and Analysis:
There is no doubt that civility amongst lawyers in the delivery of legal services to the public is a desirable goal. The problem is that in seeking to prosecute lawyers for incivility we run the risk of tampering with established legal principles such as the confidentiality of settlement discussions and the duty to defend. Indeed, the very issue of confidentiality arose at the penalty phase hearing on June 24th, 2011 when counsel for Novopharm asked the prosecutor to ask the panel to expunge parts of my testimony where the quantum of the ultimate settlement was discussed. The purpose of that specific evidence was to explain my acts and omissions and provide context to them. My consent was requested for such an order by the panel.
Any law or regulation which has as its objective to regulate the speech or conduct of a lawyer in the execution of their duty must be carefully tailored so as to interfere as little as possible with the principle of confidentiality and the duty to defend. Such a law or regulation can not be a strict liability offence because such an offence could not reasonably be said to impair the lawyer's duty to defend as little as possible. Language and a judge's pronoucement in a transcript is open to interpretation. The words of the Supreme Court of Canada in Young v. Young is highly relevant to the civility issue and I quote it below:
"But the fault that might give rise to a costs
award against Mr. How does not characterize
these proceedings, despite their great length
and acrimonious progress. Moreover, courts must
be extreamly cautious in awarding costs personally
against a lawyer, given the duties upon a lawyer to
guard confidentiality of instructions and to bring
forward with courage even unpopular causes. A lawyer
should not be placed in a situation where his or her
fear of an adverse order of costs may conflict with
these fundamental duties of his or her calling."
NOTE: This piece is written for the sole purpose of shedding light on an issue of obvious public importance - namely - the regulation of a lawyer's speech and conduct in the execution of their duty as advocates for clients. The Rule of Law and democracy works best when we allow for a free exchange of ideas.
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