Showing posts with label Alberta Courts. Show all posts
Showing posts with label Alberta Courts. Show all posts

Sunday, September 26, 2010

The Importance of Up-to-Date Powers of Attorney and Wills

The Court of Queen’s Bench of Alberta released a decision in May 2009 which brings home the implications of not having a will, or powers of attorney, covering decisions concerning your property and health-care.

Arnot Russell Maves was a man of reasonable means, with assets worth in excess of $300,000. They consisted of a modest house, several large pieces of farmland, at least some of which were capable of producing revenue, and household contents including antiques. He died in November, 2008. Back in 1995, when he first became gravely ill and unable to manage his financial affairs or make medical decisions for his personal well-being, he did not have powers of attorney in place. And when he died some thirteen years later, he did not have a will.

The Reasons for Judgment of the Honourable Mr. Justice Donald Lee in the case known as Maves Estate, should be a sobering warning to us all. The decision points out how without the proper legal documents in place, the value of your estate can be substantially eaten up through legal proceedings; family members can end up being pitted against one another; and while you’re struggling with your health, your financial affairs can be mismanaged without your knowledge.

Laws governing such matters are legislated provincially, which means that there may be variations from province to province and territory to territory, and terminology may not always be the same between jurisdictions. While this case was decided in Alberta, for the ease of reference I’ll use Ontario terms. However, the legal principles at work are pretty well consistent in most respects, throughout Canada.

A power of attorney is in effect while you are alive. In Ontario there are two types. A power of attorney for property enables you to appoint one or more individuals (or a financial institution) to manage your financial affairs by making decisions and transacting business relating to banking, investments, payment of bills, buying and selling real estate, and so on. A power of attorney for personal care is a separate document, and enables you to appoint one or more individuals (or an institution) to make decisions on your behalf regarding your health if you are mentally incapable of making such decisions. Responsibilities include nutrition, shelter (i.e. moving to a nursing home, assisted living facility, etc.), clothing, hygiene, safety, and cessation or continuation of measures whereby your life may be artificially prolonged.

Upon your death, your powers of attorney are of no further force or effect, and your will takes over. This means that decisions, mainly relating to carrying out of the financial terms of your will such as holding and then selling assets to create a fund to pay your beneficiaries, are made by your executor / executrix, often referred to as estate trustee. You appoint your estate trustee in your will. As with powers of attorney, you can appoint one or more individuals and / or institutions (i.e. a trust company).

In the case of both powers of attorney, and a will, most people tend to appoint a close relative or friend, often someone younger for obvious reasons, or a combination of people. And in both cases, if you do not have powers of attorney, or a will, in the event of respectively your infirmity or death, complications frequently arise … as our case illustrates.

When Mr. Maves first became seriously ill in 1995, his sister and a niece, Carla Poppitt, one of the Applicants in this most recent proceeding, were appointed his attorneys over his assets and health-care decisions. When Ms. Poppitt left Alberta, her daughter took over her responsibilities, and in 2004, the Office of the Public Guardian and Trustee was appointed to attend to the care of Mr. Maves. In 2008, another niece, Rose Braun, the Respondent in this case, filed a court application to become her uncle’s attorney for personal care. It was opposed by Ms. Poppitt.

The implication of the foregoing is that whenever a court application is filed, whether it is a purely administrative step, or opposed, costs are involved. In this case, because Mr. Maves did not have powers of attorney, three proceedings ensued, each of which required payment of filing fees, and in all likelihood legal fees. At least one of the proceedings was contested, resulting in even more lawyer costs being expended. Legal fees and disbursements usually come out of the estate of the infirmed.

With powers of attorney, while one can always apply to a judge if there are grounds to believe that an attorney is not acting in the best interest of the individual, more often than not there are no such proceedings, and there is little or no expense to the estate of the grantor. In this case powers of attorney did not exist. Accordingly, we must assume that thousands of dollars from Mr. Maves’ estate were used up before he even passed away.

When you do not have a power of attorney for property, you have no way of being assured that the best person or persons, in your opinion, will be making decisions which affect your assets. In this case, according to the judge, Ms. Poppitt was apparently a lifelong city resident, whereas Ms. Braun was a “farm person.” Ms. Braun alleged that Ms. Poppitt caused the estate to lose value. She stated that Ms. Poppitt:

1) did not properly tend the farmlands and they were allowed to go to weed. This resulted in the need to spray with expensive herbicides, the property then no longer being able to be characterized as “organic;”

2) did not rent out the lands between 1995 and 2008, thereby not enabling Mr. Maves to obtain rental revenue, and when she finally did rent them out, she did so for below market value;

3) failed to take adequate steps to protect Mr. Maves’ property, in that many of his personal effects and household goods including antiques were never removed from the farmhouse, and it and the barn were ultimately ransacked and vandalized, causing yet further losses.

Had Mr. Maves appointed a power of attorney for property, he likely would have considered, in the course of making his decision, which of his relatives would best be able to maximize revenue for him and protect his real estate and chattels. Certainly Ms. Braun would have been a top candidate given that she had a record of ongoing management of farmlands, having looked after her late father’s rural holdings. Ms. Poppitt had no such experience.

Because Mr. Maves died intestate, Alberta legislation governed who were the beneficiaries, and the percentages to be distributed to each. They consisted of ten nieces and nephews. Two of the nieces, Ms. Poppitt and her twin sister Karen Loucraft, applied to be appointed estate trustee in this final court proceeding. They had a lawyer. The remaining beneficiaries supported Ms. Braun, herself a beneficiary, being the estate trustee. She also had a lawyer. Once again, there were legal costs to the estate, all incurred because Mr. Maves did not have a will.

The judge concluded that both groups had much to contribute and that it would be difficult and unfair to exclude either. But isn’t it the job of the judge to make difficult decisions? Should fairness enter the equation, or should the decision be based on how best to maximize the net value of the estate and attend to its distribution. The judge appointed Ms. Poppitt and Ms. Loucraft, and Ms. Braun as representative of the remaining beneficiaries. He believed that they could put aside their differences to work for the benefit of their late uncle’s estate, yet acknowledged that “neither group publicly wants to have a great deal to do with the other on a regular day to day basis.”

Is this how you want your relatives to conduct themselves upon you becoming ill, and ultimately upon your demise? Is this how you would want your lifelong efforts working and collecting, to be rewarded; paying lawyers? Just think about it; and then get in to see your lawyer; if not for drafting these legal documents for the first time, then to review what’s already in place with a view to making amendments based on any recent changes in your circumstances.

Read the ruling: Maves Estate

- Alvin Starkman, Oaxaca, Mexico

Alvin Starkman received his Masters in Social Anthropology in 1978. After teaching for a few years he attended Osgoode Hall Law School, thereafter embarking upon a successful career as a litigator until 2004. Alvin, a good-standing member of the Law Society of Upper Canada, now resides with his wife Arlene in Oaxaca, Mexico, where he writes, leads small group tours to the villages, markets, ruins and other sights, is a consultant to documentary film production companies, and operates Casa Machaya Oaxaca Bed & Breakfast.

______________

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Monday, May 17, 2010

Alberta Tribunal Addresses the "Great Prima Facie Debate" on Family Status Workplace Accomodation

Donna Seale (as always) has a comprehensive report at Human Rights in the Workplace on an Alberta human rights ruling that requires working parents to reasonably exhaust alternative child care options before an employer will be required to accommodate child care requirements affected by new night shift assignments.

Such alternatives include having other family members stay in the home with the children, or having the children stay overnight with family members, including non-custodial parents.

It is interesting that in family law, the paramount consideration of Canadian courts that determine parental requests for such overnight stays is "the best interests of the children," with concerns regarding predictability, stability and disruption to the children, however trifling, often limiting the weeknight residential time allowed a non-custodial parent.

It is unclear whether the "best interests" test has found, or will ever find its way into human rights jurisprudence, or whether it should. Still, it is worth noting that family courts are far less inclined to permit children to ping-pong between their parents' homes on weeknights than the Alberta Board suggests may be mandatory where night shift duty is assigned.

The case cited by Ms. Seale is a February 2010 decision of the Alberta Arbitration Board in Alberta (Solicitor General Department) v. Alberta Union of Provincial Employees, 2010 CarswellAlta 742.

See: Employee fails to show “absence of reasonable alternatives” for child care, must work night shift

- Garry J. Wise, Toronto

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Thursday, September 24, 2009

Alberta Court Allows Substituted Service By Facebook

Via Slaw's Shaunna Mireau:

The February 5, 2009 Order of Master Breitkreuz from Knott v. Sutherland says that the plaintiffs could substitutionally serve one of the multiple defendants by publication of a notice in the newspaper, by forwarding a copy of the statement of claim to the human resources department where the defendant (formerly) worked, and also by sending notice of the action to the Facebook profile of the defendant.

Precedent for service in civil matters via Facebook exists from Australia and New Zealand, but I am not aware of this being ordered previously in Alberta.

- Garry J. Wise, Toronto

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Monday, January 14, 2008

Ezra's Law - The Levant File

It may have amused certain of his cronies to see good ol' boy Ezra Levant ambush, bully and harangue the very unfortunate woman assigned by the Alberta Human Rights and Citizenship Commission to investigate the complaints advanced against him.

He did not amuse me.

It offended me as a fellow Canadian.

And as a fellow lawyer.

And as a fellow Jew.

Speaking first as a fellow Canadian, I have learned at least something from the racial enmity my own family endured nearly a century ago, upon arriving in Canada.

The host culture will always produce some whose ignorance and fear will cause them to impede and stereotype new immigrants with lofty and heated pronouncements as to all the imagined evils these newcomers bring with them. While their scripts may change over time, the characters remain the same.

I am glad Canada now provides a legal remedy against egregiously discriminatory provocation and insult.

We do, indeed, protect freedom of speech in Canada as one of our fundamental rights.

By Canadian law, however, as opposed to Ezra's Law, we also enshrine the right to be free from religious discrimination and racial harassment - spoken, written, drawn or carved in rocks.

It is quite unfortunate that Mr. Levant has graduated from being the grandson of immigrants who no doubt struggled through such wrongs to someone who now unrepentantly delivers his own bad-tasting medicine to a modern generation of newcomers.

Why would he do so?

As he put it, he did it because he wanted to. Because he can. To make a point. And because he accepts no law to the contrary.

We published those cartoons for the intention and purpose of exercising our inalienable right as freeborn Albertans to publish whatever the hell we want, no matter what the hell you say... the only thing I have to say to the government is that it's my bloody right to do so. It is my right to do so for reasonable purposes or for unreasonable purposes.

I reserve the right to publish the cartoons to do every offensive thing that [the complainants] claim was in my heart... I have the full right to do everything in here that they accuse me of.

That, apparently is Ezra's Law.

Ezra Levant, one nation unto himself. Under Ezra.

There is nothing new about the hard time that has been afforded Muslim immigrants to Canada by these self-appointed "protectors of the nation." Virtually every immigrant group to this nation has been subjected to some variation of it in its early history.

At long last, in this generation we have decided as a matter of law and public policy it is better to just say "welcome," establish legal boundaries against hatred, and see what we can learn from each other.

It is not necessarily a smooth path. But it is the right path.

........

As a fellow lawyer, I must say that Mr. Levant's conduct before a representative of a statutory legal commission was nothing short of embarrassing.

I understand he was of course, not in the role of counsel in his movie debut.

It is also unclear to me whether he continues to practice law at all.

Nonetheless, after noting Mr. Levant:

I felt it would be useful to review The Law Society of Alberta Code of Professional Conduct.

The Rules below were of interest to me:

Rule 3 A lawyer must not act in a manner that might weaken public respect for the law or justice system or interfere with its fair administration.

Commentary - Rule 3 Society expects that the legal profession will play a leading role in protecting the integrity of the justice system and ensuring that it functions properly. A lawyer's behaviour is incompatible with this role if it encourages
public disdain or disregard for the administration of justice. Examples are deliberate flouting of the law or other flagrant disrespect for an aspect of the justice system; irresponsible or unjustified allegations of corruption or partiality; criticism that is ill-considered or malicious; disrupting judicial or administrative proceedings; and suggesting to a client or other person that evasion of the law is acceptable.

Rule 8. Except under extraordinary circumstances, a lawyer must not record a conversation with anyone, nor enable a third party to hear the conversation, without first obtaining the consent of the person to whom the lawyer is speaking.

Rule 9. A lawyer must not harass any person or discriminate against any person on the basis of race, language, creed, colour, national or ethnic origin, gender, religion, marital status, sexual orientation, age, mental disability or physical disability or otherwise or on the basis of any similar personal attribute.

Commentary: ... Harassment may encompass conduct which:

(a) undermines another person’s dignity by causing embarrassment, discomfort or humiliation;
(b) creates an intimidating or hostile environment for the recipient of the harassment...

...Personal harassment is disrespectful and degrading conduct generally that is not specifically focused within the prohibited grounds. It includes conduct that is rude, insulting, belittling or vindictive (see also Rules #2, #6 and #7 in this chapter and related commentaries). The key in determining whether conduct is harassment is the impact the conduct has had on the complainant, not the intent with which it was done. Harassment is different from offending a person; it involves undermining
another person's personal integrity.

The rule against harassment is a pervasive rule. It applies to lawyers' relations with clients, other lawyers, others who work in the justice system (judges, court officials and staff, the police and prison guards, etc.) and members of the general public.

........

I was perhaps most offended as a fellow Jew whose community was invoked by Mr. Levant in a bizarre, rambling effort to rationalize his own questionable behaviour as harmless by reference to criminal vandalism against the Edmonton synagogue he claims as his own.

There are people out there who do awful things to our synagogues, Mr. Levant. Do I really need to say that this unfortunate reality does not grant us license or in any way immunize us from the consequences of our own hateful acts?

I do not know any Jewish-Canadians (except the one governed by Ezra's Law), who would even consider proposing such an offensive argument.

A synagogue attack by one Muslim does not justify hatred of all Muslims. It justifies criminal proceedings against the perpetrators.

Do what you must Mr. Levant, but do not purport to drag Canada's Jewish community with you into this.

We are a tolerant people, living in a tolerant country. And want to keep it that way.

....

Which brings me to back to a remark I left dangling last week.

..let us not confuse who the "good guys" are here

"Who are the good guys, then Mr. Wise?" one commenter asked.

The good guys, of course, are the thousands of hard-working and determined Islamic immigrants who have come to Canada and America to make a better lives for themselves and their children, as did my forebears.

They have come to escape war or oppression or limited opportunity at home. As did my grandparents.

They are the ones who lived quiet, normal, and largely apolitical lives in their neighbourhoods, did their jobs, prayed in their mosques, and communed with their families and friends.

Until September 11, 2001.

The day our world went crazy. The day some among us decided they were all suspects. The day law enforcement was let loose on them.

Some theorists have gone so far as to suggest Islamic immigrants have arrived, armed with a master plan to convert Canada and America into Islamic outposts under Sharia law, without even noting that most Islamic-Canadian immigrants left their host nations precisely to get away from that form of excess.

So who are the good guys?

They are the ordinary people, the Islamic-Canadian citizens who contend daily with the discrimination and harassment that comes with the pervasive, but false notion that they are somehow, by definition, all aligned with the worst of the worst who happen to share their religion.

To put it more bluntly, they are the victims of guilt by association. One will easily note from a review of the video that in Ezra's World, any wrong committed by any individual Muslim quite naturally must lead to unchecked national hatred of all Muslims. It is all their fault, according to Ezra.

In my view, they need legal protection against discrimination and harassment.

I am relieved to be in a Canada that provides it as a matter of law.

......

Fortunately, the news is not all bad:

Celebrating Canada's multiculturalism

... It is often overlooked that Canada has the highest immigration rate on the planet. However, it was only in the 1960s that Canada abandoned its racist immigration policies and began admitting newcomers according to their skills and qualifications rather than their nations of origin.

...Much has been achieved over time. Once it seemed likely that Canada could never aspire to genuine equality for newcomers, let alone achieve it. How things have changed.

It is noteworthy that 80 per cent of recent immigrants after four years in the country say that if they had to do it again they would make the same decision and come to Canada.

What about Muslims as immigrants? Today they are about 2.5 per cent of the total population, numbering about 850,000. It is the fastest growing religion in the country. The median age of Canadian Muslims is about a decade lower than the median age of the population at large.

Among foreign-born Muslims, about half have come to Canada in the last 10 years. Thirty per cent have been in Canada from 11 to 19 years, and 17 per cent have been in this country for two decades or longer. About 60 per cent of them live in Ontario, 20 per cent in Quebec.

Despite widespread unfavourable comment and some irresponsible alarm, it is clear, says the author, according to his research, that they tend to share important traits with other newcomers to Canada: optimism, enthusiasm for their adopted country, a desire to improve their lives and the wish to be treated fairly.

....


A tidbit from Toronto history will be illuminating as to how Canadian governments have typically responded to racial provocation.

An elderly uncle of mine still speaks with pride of his role in defending the Jews of Toronto in 1933 by being part of the fabled Christie Pits riots. The event is documented online by the Plaque Project as follow:

In 1933, shortly after Adolph Hitler was elected to power in Germany, newspaper articles reached Toronto bringing with them news of the atrocities the Nazis were carrying out against Jews there. Toronto’s anti-Semites became inspired by what they read, and began adopting the swastika symbol. In July of that year a group of residents from the Beaches neighbourhood formed the Balmy Beach Swastika Club. They complained about the crowding, litter and ‘vulgarity’ at the beach, which they attributed to the large number of ‘obnoxious visitors’ who were riding the street cars out to the beach that summer. Many of these visitors were Jewish, and anti-Semitism seemed to be a cornerstone of the Swastika Club; they wore and posted swastikas and they attempted to have Jews and other ‘foreiners’ banned them from the beach. Even though the beach was a public park Beaches residents including the Swastika Club saw it as very much their own, and private. All of this outraged the Jewish community.

...On August 14th huge crowds gathered at Christie Pits for a baseball game, the first game of a tournament between the St. Peters’ team and the predominately Jewish Harbord Playground team. The game took place in a neighbourhood that Jews had just started moving into, and racial animosities were running high. The Harbord Playground team won the game despite the taunting from the crowd and the flying of a swastika banner. The next morning there was a giant swastika and large lettering that read Heil Hitler painted on the top of the Christie Pits clubhouse. This increased tensions and brought even more people out to the next game on August 16th. During that game a group of St. Peters’ supporters raised a white bed sheet with a swastika painted on it. A group of Jews went to tear it down. This ignited a fight, and soon the thousands of spectators had joined the brawl. The two sides violently clashed, battling each other and fighting for the bed sheet. Many residents in the area who were not involved in the baseball game “ came out of their houses with bats and sticks because they were after the Jews”. One Jewish boy was hit on the head and needed to be rushed to hospital, but rumour spread that he had been killed. As news of the riot hit the Jewish areas many more Jews (along with their Italian allies) headed north to join the massive brawl. Metal pipes and baseball bats were wielded as weapons. Pitch battles continued late into the night and spread to neighbouring streets and alleys as police closed down the park.

Only two days after the riot fears of further violence forced city council to ban the Swastika symbol from Toronto’s streets.

Even in 1933, Canadian sensibilities favoured legislation prohibiting the public display of incendiary symbols, as a measure to avoid the foment of racial discord and violence.

Apparently, it worked then.

I do not note any slippery slope toward totalitarianism that has followed.

......

The notion that human rights commissions are somehow "liberal" is worthy of passing comment. Alberta has had Progressive Conseratives in power continuously since 1971. Alberta's first human rights legislation was enacted in 1972. Do the math.

......

America has Skokie. We have Human Rights Commissions.

Either approach works. But I'll stick with ours, thanks.

.....

Finally, I do not see the complaints against Mr. Levant as anywhere near as frivolous as those against Mark Steyn. Mark Steyn may offend some with his theories, but that is clearly not his objective, nor is offense the inevitable result of his work.

Mr. Levant chose, knowingly, to publish and republish deeply offensive cartoons that he was well aware had led to serious upset, outrage and violence after prior publications overseas.

Let us not conflate Mark Steyn and Ezra Levant. These are very different cases.

Mark Steyn is a serious, talented writer. We do not have to agree with his views to at least recognize his highly researched, if controversial, efforts to analyze and address the key issues of our times. I have repeatedly stated my view that the complaints against Mr. Steyn are dubious and unlikely to succeed. His conclusions may be debatable, but his freedom to express them should never be.

By contrast, in the impugned publication, Mr. Levant has created nothing. His "big stand" involved copying and pasting. He published a series of inflammatory comic drawings that most of the Western media wisely saw fit to avoid, after observing the great offense taken to them by the Islamic world.

Mr. Levant knew exactly what he was doing. He cries foul, but his is the cry of one who makes the fatal mistake of pretending to be above the law.

Did Mr. Levant cross a legal line by publishing the offending cartoons, or by republishing them earlier this week? Did any of his comments before the Commission, now published on YouTube for the world to see, cross any lines?

Maybe. Maybe not.

That, as a matter of law, is now up to the Commission, and perhaps, appellate courts to decide.

As always, the Commission will fulfil its legislated mandate. That is its statutory role. Some readers get angry with me for noting that reality, but I will note it again, nonetheless.

Let's be clear - the Commission is not on trial here.

What is on trial is Ezra's Law.

........................

UPDATE: January 17, 2008

I appreciate the many comments to this post, many of which are quite thoughtful. I entirely agree with the many persuasive arguments raised in favour of treading very carefully, indeed, with respect to anything that purports to limit freedom of expression in Canada.

Many of the commenter' arguments raised are largely in line with the Supreme Court of Canada's 1990 decision in Canada (Human Rights Commission) v. Taylor, which, to some extent, defined the balancing of interests necessary in the consideration of these kinds of cases. I will again excerpt from the slim majority's ruling:

58 I find it helpful to address the question of whether s. 13(1) minimally impairs the freedom of expression by examining in turn the arguments marshalled by the appellants and the CCLA in support of striking down the section. One of the strongest of these arguments is the complaint that the phrase "hatred or contempt" used in s. 13(1) is overbroad and excessively vague. Specifically, it is said that the wide range of meanings available for both "hatred" and "contempt" extend the scope of the section to cover expression not causing the harm which Parliament seeks to prevent. Additionally, the appellants contend that the process of determining whether a particular communication is likely to expose persons to "hatred or contempt" is necessarily subjective, leaving open the possibility that in deciding whether a complaint is well-founded the Tribunal will fall into the error of censuring expression simply because it is felt to be offensive.

59 When considering the scope of the phrase "hatred or contempt", it is worthwhile mentioning that the nature of human rights legislation militates against an unduly narrow reading of s. 13(1). As was stated by Lamer J. in Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158, a human rights code "is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law". I therefore do not wish to transgress the well-established principle that the rights enumerated in such a code should be given their full recognition and effect through a fair, large and liberal interpretation. At the same time, however, the purposive definition to be given a human rights code cannot extend so far as to permit the limitation of a Charter right or freedom not otherwise justified under s. 1.
60 In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression so long as the interpretation of the words "hatred" and "contempt" is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression. Such a perspective was employed by the Human Rights Tribunal in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, the most recent decision regarding s. 13(1), where it was noted, at p. D/6469, that: In defining "hatred" the Tribunal [in Taylor] applied the definition in the Oxford English Dictionary (1971 ed.) which reads (at p. 28):
active dislike, detestation, enmity, ill-will, malevolence.

The Tribunal drew on the same source for their definition of "contempt". It was characterized as the condition of being condemned or despised; dishonour or disgrace. As there is no definition of "hatred" or "contempt" within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With "hatred" the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings. This is captured by the dictionary definition relied on in Taylor ... in the use of the terms "despised", "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully coextensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be. [Emphasis added.]

61 The approach taken in Nealy gives full force and recognition to the purpose of the Canadian Human Rights Act while remaining consistent with the Charter. The reference to "hatred" in the above quotation speaks of "extreme" ill-will and an emotion which allows for "no redeeming qualities" in the person at whom it is directed. "Contempt" appears to be viewed as similarly extreme, though is felt by the Tribunal to describe more appropriately circumstances where the object of one's feelings is looked down upon. According to the reading of the Tribunal, s. 13(1) thus refers to unusually strong and deep-felt emotions of detestation, calumny and vilification, and I do not find this interpretation to be particularly expansive. To the extent that the section may impose a slightly broader limit upon freedom of expression than does s. 319(2) of the Criminal Code, however, I [page929] am of the view that the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision. 62 In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section. (emphasis added)

As I noted in my conclusion to this post, I do not know whether Mr. Levant has crossed any legal line. That will be for the tribunal to decide, if the case proceeds beyond this stage. If nothing else, Mr. Levant wishes to test or challenge this very area of law, and he now has his opportunity.

I also will reiterate my thought that Canada will benefit from further definition from the appellate Courts on how the Supreme Court of Canada's comments are to be interpreted in a modern, internet environment. I have said as much in prior posts:

Having reviewed much of what has been written, including Ezra Levant's summary of recent tribunal decisions in the National Post, my impression, however, is that our human rights tribunals have at times been inconsistent and unduly restrictive in deciding freedom of expression cases.

That is probably as much due to the absence of any genuine guidance from the Supreme Court of Canada since 1990's Canada (Human Rights Commission) v. Taylor, as any other factor.

There is a proper, but narrow role for human rights tribunals in dealing with the strongest and most noxious instances of hate speech, as originally intended. That is the law in Canada, as resolved by Taylor, and as a matter of public policy, I believe it to be a justifiable limit, to be employed in extreme, rare cases.

The human rights commissions' terms of reference badly require clarification by the courts to redefine their functions in a modern, internet-based communications universe. The primacy of the Charter of Rights in freedom of expression cases that come before the tribunals would benefit from judicial restatement.

While much of the ongoing discussion of human rights commissions has been devisive and polarized, I continue to view our Human Rights tribunals and Courts as well able to handle the challenge of striking the appropriate balance.

Finally, it has come to my attention that a few writers have inaccurately characterized my comments in the above post as somehow "calling" for specific professional sanction againt Mr. Levant. My post did not take that position.

My comments did, however, underline my sincere view that there is nothing appropriate about calling a Human Rights Commission investigator a "thug" in the midst of an investigation.

- Garry J. Wise, Toronto

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Friday, January 11, 2008

Alberta Court of Appeal: Drug Testing Upheld at Construction Workplaces

Citing the overriding importance of ensuring workplace safety, the Alberta Court of Appeal has ruled that mandatory drug testing of employees at Alberta construction sites does not infringe on individual human rights.

The Appeal Court decision overruled a Queen's Bench judge's finding that the termination of a construction employee who had tested positive for marijuana was discriminatory.

- Garry J. Wise, Toronto

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