Monday, January 31, 2011

Ontario Human Rights Tribunal Decisions - January 17-21, 2011

Starting today, Wise Law Blog will review each week's important decisions from the Ontario Human Rights Tribunal.

We'll break the decisions down into two categories:

  1. Substantive rulings on cases of discrimination; and
  2. Those touching upon strictly procedural matters

We hope all of our readers will enjoy this new series.


Krajisnik v. Linamar Corp.

In this case, the Tribunal deals with one discrete procedural issue: dismissal for delay.

Under the Ontario Human Rights Code, an application under Section 34 – for example, alleging discrimination in employment must be filed within one year unless there are good faith reasons for the applicant having failed to file his Application within the time limits set out in the Code, and such an extension does not cause substantial prejudice to the respondent.

The applicant, a man alleging discrimination against his employer on the ground of disability, had been terminated in 2002 by his employer who concluded that the applicant’s employment had been frustrated as a result of the applicant’s permanent and total disability. The applicant submitted that he had good faith reasons for filing his application late, specifically in 2009.

The tribunal rejected the good faith reasons put forward by the applicant.

First, the fact that he may only have learned of his rights in 2009, the year he made the application, was not a valid reason since ignorance of one’s right alone is no excuse for not filing the required time frame set in the Code. To raise this sort of defence, an applicant must also show that they had no reason to make enquiries about those rights, which he failed to establish.

On the latter point, an argument that relied on the doctrine of reasonable discoverability, the fact that applicant had received an ergonomist report in 2009 that confirmed his suspicion that one of the jobs that he had been assigned in 2001 was beyond his medical limitations did not mean that his belief that he been unfairly treated crystallized at that point. The Tribunal held that there was ample evidence in this case that the applicant came to this realization far earlier in time, and that the medical report had not helped him discover his case but rather discover the extent of evidence in support of it.

Second, the fact that the respondent employer had not been receptive to the respondents repeated refusals to provide documents for the applicant to use in WSIB proceedings were not related to the incidents of discrimination that took place during the applicant’s employment. To be specific, even if his employer was failing in its duty to accommodate him since it was assigning him work that he was medically incapable of doing, its knowing withholding of documents following termination of the Applicant could not of itself constitute a “related discriminatory act” in order to make the last incident of discrimination fall within the required time window.

As there were no valid reasons put forward by the applicant to establish "good faith", the Tribunal found it unnecessary to consider potential prejudice to the respondent that such an allowance might engender, dismissing the case for delay.

Gaetano v. HSBC Bank of Canada

In this case, the applicant filed an Application under section 34 of Code alleging discrimination on the basis of gender, age, and sexual orientation. The major procedural matter at issue was the Tribunal’s jurisdiction: could the Tribunal rule on a matter involving an employee who had been terminated by a federally regulated chartered bank.

In answering “no”, the Tribunal noted that the Ontario Human Rights Code only applies to matters that fall within provincial jurisdiction and thus it does not apply to the applicant's employment since the Constitution Act, 1867 gives the federal government exclusive power over banking. Accordingly, for this application to be considered, the applicant would have to apply to the Canadian Human Rights Commission, the body charged with applying the comparable legislation to areas of federal jurisdiction.

Sargeant v. 1425841 Ontario Ltd.

In this case, the applicant failed to attend for his scheduled hearing as indicated in the Notice of Hearing that was not returned to the Tribunal as undeliverable. Nor did the applicant attempt to contact the Tribunal. After waiting an 1 hour and 15 minutes, his application was dismissed as abandoned.


Popplewell v. Canadian Diabetes Association

In this case, a self-identified Black female claimed that she was subject to harassment and discrimination by her employer over a period of two years as a telephone representative, and alleged she was ultimately dismissed on the ground of race and colour contrary to sections 5 and 9 of the Code.

The applicant identified a number of incidents of differential treatment that she submitted amounted to racial discrimination as defined by the Code:

1. She was told by a supervisor to seek family counseling;

2. She was contracted at home by management in a manner that was intimidating;

3. She was suspended multiple times and received numerous written warnings.

The applicant forcefully submitted that Caucasian employees were not subject to any of these forms of treatment.

In dismissing the complainant's application, the Tribunal engaged in an extensive analysis of credibility of all witnesses concerned, finding the applicant’s testimony as a whole was unreliable and preferring the testimony of the employer and its employees. The latter testimony revealed an employee with a pattern of insubordinate behaviour, who could not handle constructive criticism and who had made threatening comments to supervisory staff members who had confronted her to do no more than address legitimate employer concerns. Unlike other witnesses, which included a number of management employees, the applicant had not taken contemporaneous notes and could not recall the details of certain incidents relied upon in support of her claims.

Also weighing against the applicant was that the many independent investigations had been undertaken into the applicant’s complaints of racial discrimination but none had revealed any such misconduct. Instead they revealed an employee with weak performance and productivity levels, who had displayed very confrontational behavior in the workplace.

On her specific reference to acts of discrimination, identified above, the Tribunal noted:

1. That it was not improper for a supervisor who observed an employee displaying a pattern of aggressive and hostile behavior to recommend family counseling;

2. That it was not unusual for an employee, like the applicant who does much of her work at home, to be contacted by her superiors to discuss work-related issues;

3. That suspensions and written warnings were justified responses to the applicant’s poor work performance and unexplained hostile behavior.

The Tribunal concluded that "race" was not a factor whatsoever in the applicant’s termination, nor had she been the subject of racial discrimination or harassment during the course of her employment with the respondent employer. The fact that the applicant had the subjective belief that acts of racial discrimination against her were occurring in the workplace was not enough to meet the test.

- Robert Tanha, Toronto
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Friday, January 28, 2011

This Week at the Court of Appeal: 11-01-28

Each week, Wise Law Blog reviews key decisions from the Ontario Court of Appeal. Here is this week's offering:

R. v. M.B. A sexual assault case where an uncle was convicted of sexually assaulting his two nieces and his nephew. The defendant appealed both charges (one in relation to his nieces, the other to his nephew).

The Court ordered new trials in relation to both. In regards to the nieces, the Court had multiple concerns. They felt there was evidence that the two nieces had had the opportunity to talk with each other about their experiences and possibly collude or grow confused, and that the court had not given a proper warning that this might have happened. The judge also did not warn the jury that the girls' evidence was self-contradictory in some respects and that the children's evidence should be viewed in that light, which the Court of Appeal found troubling. Finally, they felt that the Crown's closing address, which was vitriolic and inflammatory towards the defendant, was inappropriate and that the trial judge's failure to order a mistrial or order the appropriate corrective instructions to the jury regarding the Crown's rhetoric.

In regards to the nephew, the Crown's case relied heavily on similar fact evidence, and the Court pointed out that under Canadian law the Crown may not rely on issue estoppel to prove its case, overturning the conviction quite simply. Read-the-whole-case rating: 3.

R. v. May. A Crown application to appeal sentences of two young men convicted of robbery. The young men (19 and 21) pled guilty to the charge and were sentenced two years less a day plus three years' probation (Mr. May) and 21 months plus three years' probation (his contemporary, Mr. Whalen). The crime itself was planned. May and two other associates (unnamed) committed a home invasion and threatened to kill the family inside. (Mr. Whalen was the getaway driver and did not enter the home.) At one point during the robbery a gun discharged and killed one of the other two members of May and Whalen's gang.

Both May and Whalen were placed on strict bail for the year and a half preceding the trial, and during that time both men were independently evaluated and found to be proceding very well along a course of rehabiliation and had "turned their lives around," as May in particular came from a bad background and both men had prior offences as youths. The Crown, however, despite recognizing their improvements as citizens, still wished for a stricter sentence.

The Court of Appeal disagreed with the Crown, stating that, although the sentences given to May and Whalen were certainly on the light end of the potential range of sentences available, measuring the need for a retributive sentence versus the need to protect May and Whalen's rehabiliation (which if successful would be extremely valuable) was a difficult task and the judge's final sentences - which were due a reasonable amount of deference in any appeal - were not outside the boundary of reasonableness. Read-the-whole-case rating: 2, if only because this is a somewhat rare sort of appeal for the Court to consider.

Grover v. Hodgins. A Small Claims Court order for a portion of legal fees that the respondents paid to prosecute a civil action relating to a condominium complex. The action was one where Ontario-based owners of the complex, located in British Columbia, agreed to share legal costs of an action related to management of the complex. One set of owners (the Grovers, the appellants) refused to join in the action, but all other owners refused. When the action successfully resolved, the respondents (Hodgins and his wife) brought action against the Grovers for damages arising from the breach of an agreement to contribute to costs, or alternately damages that the Grovers were unjustly enriched. The Small Claims Court judge decided that the breach of contract claim failed, but awarded the damages for unjust enrichment.

The Court of Appeal found that both claims failed. The Court reaffirmed the Small Claims Court decision regarding breach of contract: there was insufficient evidence to demonstrate the existence of binding contract and no moment demonstrated where they could have formed one on an informal basis. As regards the unjust enrichment claim, the Court of Appeal pointed out that unjust enrichment requires benefit conferred, a corresponding loss, and an absence of any juristic reason for the enrichment.

The issue of whether a benefit was conferred was questionable; that the Grovers' condo increased in value following the action was not necessarily relevant, since they had essentially received services, and if a defendant does not want services they do not necessarily benefit from them since they might have preferred to decline the benefit given the choice. Furthermore, the Court stated that the trial judge had incorrectly found a corresponding deprivation, since the defendants had not been deprived - they had paid for legal services and received them. Therefore, there could be no unjust enrichment.

More important than the disposition of the case, however, was that the Court agreed with both parties that Small Claims Court has jurisdiction to consider claims for equitable relief in this manner. (No previous decision of the Court of Appeal has provided binding authority for the ability of a Small Claims Court to consider equitable claims.) The Court stated that the history of the Small Claims Court is one of "progressive development toward providing increased access to justice," found that there was no statutory language explicitly preventing a Small Claims Court from hearing equitable claims matters, and finally decided that interpreting the Courts of Justice Act to say that Small Claims Courts could not hear equitable claims would run counter to the objective of providing citizens with inexpensive access to civil justice. Therefore, the Court held that where equitable claims fell under the Small Claims Court limit of $25,000, the Small Claims Court could hear them. Read-the-whole-case rating: 4 as this is a fairly major step for the Small Claims Court (and for articling students, like this writer, who are able to appear at that Court).
- Christopher Bird, Toronto
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Thursday, January 27, 2011

Indiscriminate Demand Letters Under Fire In The UK

Interesting new developments in the United Kingdom as a system of mass demand-letter mailings has come to an end:
The London-based law firm at the heart of a huge row over illegal filesharing this week turned off its overworked photocopier, and vowed to no longer pursue the tens of thousands of Britons it suspects of copyright infringement.

From its Hanover Square office, ACS:Law has led the charge in sending letters demanding payment from alleged illicit filesharers, attracting unwanted attention from online activists, industry regulators and privacy commissioners along the way.
The method is referred to as "speculative invoicing." A firm will mail out demand letters to anyone suspected by its client of illegal filesharing, operating primarily on a contingency basis, hoping to gain penalty payments from as many of the receivers of said letters as possible.

The problems with this system are obvious: it amounts to the threat of legal action being used in a manner akin to a shotgun. Some of those preparing a class action suit against ACS:Law claim they were wrongfully targeted by the firm, and at least some of them claim they paid the demanded monies to avoid prosecution. The fact that they did so should not be surprising, since volume delivery of demand letters will usually result in some percentage of the targets immediately acceding to terms.

More importantly is that speculative invoicing raises questions about one of the major concerns of contingency fees: the use of them to enrich firms unduly. In this instance the firm, ACS:Law, was keeping sixty-five percent of all fines paid by accused infringers. With such a fee structure, the firm clearly had incentive to make sure that as many potential infringers were identified and given demand as possible - and further they had incentive to stretch the definition of "potential" as widely as they felt fit. Bluntly, fee arrangements of this sort can very easily be seen as sleazy.

By comparison, regulations governing Ontario contingency fee agreements provide that "a solicitor for a plaintiff shall not recover more in fees under the agreement than the plaintiff recovers as damages or receives by way of settlement."

- Christopher Bird, Toronto
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Meet the Blawgers

Another successful Law Blogger Meetup was held Wednesday night at P.J. O'Brien's Irish Pub in downtown Toronto. While we missed a few familiar faces who weren't able to make it this time, it was great to see quite a few newcomers joining in with this burgeoning community for the first time. Here are a few iPhone photos from the evening:

Back, From Left: Andrew Feldstein, Omar Ha-Redeye, Bob Tarantino, Chris Jaglowitz, Lorraine Fleck, Connie Crosby, Syed Ali Ahmed, Front, From Left: Antonin Pribetic, Dan Pinnington, Monica Goyal, Michael Carabash, Garry Wise, Joel Welsh, Adam Goodman. Also present: Barry Sookman

Many thanks to our server at P.J. O'Brien's, who so nimbly and enthusiastically jumped upon a chair to take the group shots. Special kudos, as well, to Entertainment and Media Law Signal's Bob Tarantino for setting the wheels in motion for this inaugural 2011 episode of Toronto Blawgstravaganza.
- Garry J. Wise, Toronto

Wednesday, January 26, 2011

140Law - Legal Headlines for January 26, 2011

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- Rachel Spence, Toronto

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Tuesday, January 25, 2011

140Law - Legal Headlines for January 24 & 25, 2011

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