This Week At The Ontario Court of Appeal: 11-05-06

Each week Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Mason v. Chem-Trend Limited Partnership. A separate application related to a wrongful dismissal suit, where the plaintiff (the dismissed employee) sought to challenge a restrictive covenant in his employment contract as unenforceable.

Mr. Mason, upon being hired by Chem-Trend as a technical sales representative, signed an employment contract containing a restrictive covenant preventing him from engaging in "any business or activity in competition with the Company by providing services or products to, or soliciting business from, any business entity which was a customer of the Company during the period in which I was an employee of the Company" for one year following his termination for any reason.

The application judge stated that the covenant was not ambiguous, and that Mr. Mason understood its meaning when he signed it. The judge also stated that given Chem-Trend's worldwide scope, the worldwide scope of the restrictive covenant was therefore reasonable, as was restricting any activity by the appellant in conjunctin with Chem-Trend's competition for the same reason. The application judge also noted that the one-year restriction period was relatively short.

The Court of Appeal disagreed. The Court noted that the caselaw in this regard suggests that an unreasonable restrictive covenant can be found invalid if the overall limits of the clauses in the convenant are overly broad and prevent competition generally (as opposed to specifically competing against the employer by soliciting its customers).

In terms of Mr. Mason's employment contract, the Court observed that the restrictive convenant clause prevented Mr. Mason from working with any business entity which was a customer of Chem-Trend for the entirety of Mr. Mason's tenure with the company - over seventeen years. The Court held that a prohibition from working with all companies that had been customers of the business for nearly two decades was excessive; they also reasoned that this prohibition was at odds with the one-year time period of the covenant, since if the covenant expired after a year the assumption then was that Mr. Mason's information on the company and its clients would no longer be current at that time, and therefore the seventeen-year restriction was even more excessive as it was therefore unreasonable. The Court also pointed out that since the restrictive convenant contained a clause protecting trade secrets that the clause on employment restrictions was even less defensible given that other elements of the covenant protected the company in that regard. The Court therefore declared that the restrictive covenant was unenforceable. Read-the-whole-case rating: 2.

United Stated of America v. Khadr. Abdullah Khadr was abducted by Pakistan's Inter-Services Intelligence Directory (the "ISI"), who were in turn paid by the United States for that purpose. Mr. Khadr was secretly held in detention for fourteen months, then for another nine months before Mr. Khadr was repatriated to Canada. The United States requested extradition, which failed when the judge of the Superior Court who considered the case deemed the violations of Mr. Khadr's human rights to be "shocking and injustifiable," and ordered a stay of proceeding based on abuse of process. The Attorney General of Canada (acting for the USA) appealed the stay on the basis that the extradition judge's stay was outside of his jurisdiction, and alternatively that his case did not qualify for a stay.

The Court dismissed the appeal. Firstly, the Court stated that the residual power of a Superior Court Judge to order a stay to remedy an abuse of process was not limited strictly to procedural abuse, and that the law clearly allowed the court to order a stay where allowing a case to continue would endanger public confidence in the judicial system.

The appellant, however, proposed that s. 44(1)(a) of the Extradition Act, where the Minister of Justice is granted authority to refuse to make a surrender order at the end of the immigration process, deprived a superior court of the power to order a stay since that power created a remedy for instances of abuse of process. Some extradition cases suggests that where Charter of Rights and Freedoms issues arise and refusal to surrender is a potential remedy, that then the remedy is exclusively that of the Minister of Justice.

However, the Court of Appeal cited United States of America v. Cobb, where issues that fall within the committal stage - including the use of the stay power - are the jurisdiction of the courts. The appellant suggested that Cobb was distinguishable on the grounds that this case dealt with conduct which did not directly implicate the extradition hearing, whereas Cobb was a case where the potential extraditees were intimidated from exercising their rights to a hearing.

The Court disagreed with this analysis, pointing out that the entire basis for the stay in the first place was that the United States had perpetrated a serious misconduct in garnering its information which caused it to request extradition, which meant that the abuse of process was the root cause for the extradition hearing to happen in the first place. The Court also stated that the Attorney General's reading of Cobb was overly narrow and that common law suggested that the power for an extradition judge to stay proceedings for abuse of process was much broader than simply relating to the fairness of the hearing itself, and finally state that recognizing this power coincided with the idea that the courts should not surrender their own authority to protect their integrity to the executive.

The Court then considered whether this case qualified for a stay, given that they had clearly decided that the stay power was usable in this instance. They noted that the Attorney General had not appealed the findings of the extradition judge that Mr. Khadr's human rights violations were "shocking and unjustifiable," and then stated that the judge's findings were sufficient to trigger discretionary use of a stay in this instance. The Attorney General also submitted that the extradition judge had no jurisdiction to find that Mr. Khadr's detention had been illegal under Pakistani law, but the Court pointed out that the judge had relied upon an expert affidavit from a law professor to establish that fact.

Finally, the Court rejected the appellant's argument that the stay should be rejected on the basis that the extradition judge had not appropriately balanced the effect of the stay against the public's interest in seeing an alleged terrorist committed for extradition. The Court first stated that balancing the merits of a stay should only occur in borderline cases of abuse, rather than in clear cases, then pointed out that the Attorney General itself had conceded that Mr. Khadr was liable under the Criminal Code of Canada for terrorist acts committed in another country and that therefore, even if balancing were necessary, the fact that other means existed to address the public's interest in this case would tip that balance in favour of the stay. Read-the-whole-case rating:4.

- Christopher Bird, Toronto

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Ontario Human Rights Tribunal Digest – January 24-28, 2011

Each week, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.

PROCEDURAL RULINGS

Jasavala v. Slywka

In this case, the applicant filed an application under section 34 of the Ontario Human Rights Code alleging discrimination. An accurate address for the respondent was not provied with the Application.

The Tribunal attempted to deliver the application to the respondent bust was unable to effect service. The Tribunal noted that its Rules of Procedure put the onus on the applicant to provide the Tribunal with an accurate address. It further noted that an applicant should consult the Applicant’s Guide available on its website, as it provides examples of how contact information can be found or verified.

Upon return of the envelope containing the application to the Tribunal, the Tribunal made the following order against the applicant:

a. If the applicant wishes to proceed with this application, the applicant shall, within 20 days of the date of this Interim Decision, provide a current, complete and accurate address for the respondent and explain the steps take to ensure that the address is current, complete, and accurate; and

b. If the applicant believes that any address previously provided is in fact current, complete and accurate contact information for the respondent, then the applicant shall provide the reasons for that belief, and the steps taken to verify that the address is current, complete and accurate.

The applicant did not comply with this order and did not provide the requested information within 20 days. Consequently, the Application was dismissed.

Penalosa v. Teva Canada Limited and Urmilla Singh

This case deals with a fairly common procedural issue: dismissal for delay. In this case, the applicant filed an application, alleging discrimination in employment by the respondents on the basis of disability.

The Tribunal proceeded to issue a Notice of Intent to Dismiss (NOID) since the application appeared to be outside its jurisdiction, in that it was filed more than one year after the last incident of alleged discrimination noted therein.

Section 34 of the Ontario Human Rights Code states, in part:

Application by person

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last
incident in the series. 2006, c. 30, s. 5.

Late applications
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no
substantial prejudice will result to any person affected by the delay. 2006, c.
30, s. 5.

In its decision, the Tribunal noted that when an applicant files outside the one year time limit, it is has a duty to provide the Tribunal with an explanation as to why he or she did not pursue his rights under the Code in a timely fashion, which the applicant in this case had not done.

In response to the NOID, the applicant indicated she had misstated the date of the alleged last incident of discrimination, and that she had attempted to file the application a day earlier than the date it was deemed to be filed on, but found that the Tribunal’s offices were closed.

Given the applicant’s written submissions on this point, the Tribunal was not satisfied that it was “plain and obvious” – the legal test that is applied with respect to the delay provision contained in the Code – that the Application should be barred by virtue of the delay.

While the Tribunal decided not to dismiss the application for delay, it noted that its decision on jurisdiction was only an interim decision, not a final one.

Janssen v. Magna Qualtech Seating Systems and Tricia Montminy

In this case, the applicant filed an Application alleging discrimination against his former employer on the basis of disability fully aware that another legal proceeding, specifically an appeal under the Workplace and Safety Insurance Act, concerning the subject matter of the Application was already in progress. The respondents submitted to the Tribunal that the Application ought to be deferred pending resolution of this other legal proceeding since they were dealing with the same issues, namely the applicant’s injuries and whether he was able to work for the respondent employer during the relevant time frame.

The applicant submitted that the two proceedings dealt with different issues. The first dealt with termination of benefits by the Workplace and Safety Insurance Board, while the second dealt with termination of employment by the respondents.

In deciding whether the application should be deferred, the Tribunal turned to Rule 14.1 of its Rules of Procedure, which allows it to defer an application where it concludes that there is another legal proceeding in process dealing with the same facts or issues that could make inconsistent decisions on questions of facts or law that would be before the Tribunal. It ultimately agreed with the respondents’ position, concluding that both decisions would touch upon the same issues raising the real possibility of inconsistent decisions.

In the result, it deferred the application pending resolution of the other proceeding. Of note, however, in its reasons the Tribunal reminded the parties that the application could be brought back following conclusion of the WSIA appeal in accordance with its Rules of Procedure.

RULINGS ON DISCRIMINATION

Hamilton v. American Standard, a Division of Wabco Standard Trane Co.

The applicant, a former unionized employee of the respondent, a manufacturer of steel bathtubs, alleged discrimination on the basis of disability. The applicant had commenced employment with the respondent as a unionized employee, but following a serious workplace injury he was no longer able to continue in his position, and was offered a non-unionized job as a security guard at the same rate of pay. The applicant accepted the position, and was advised that this was a salaried position outside the collective bargaining unit and therefore he would no longer be required to pay union dues.

When the manufacturing plant was shut down and the applicant’s employment was terminated by the respondent, the applicant made an application to the Tribunal, alleging that the following acts by his former employer at the time termination constituted discrimination on the basis of disability for which he deserved monetary compensation:

1. He did not receive an enhanced severance payment that was given to other employees, pursuant to the collective agreement, when the respondent’s plant was closed; and

2. He was not retained as a security guard to oversee the plant closure.

The Tribunal held that the applicant had made an informed decision to accept the new job on new terms of employment, and had worked under such terms for nearly three years. One of those terms was that for the reminder of his employment, he would no longer be a member of the bargaining unit. As a result, he was not entitled to the enhanced severance payments negotiated under the Closure Agreement in respect of unionized staff at the time of his termination; in no way could this be construed as discrimination on the basis of disability.

Likewise, the fact that the employer did not keep the applicant employed during the shut down phase was not discrimination on the ground of disability either because the guard hired was employed by an outside company. The Tribunal noted that none of the other salaried employees who were similarly situated to the applicant had been kept on during this period, hence the respondent's failure to retain the applicant could not be viewed as evidence of differential treatment on the basis of disability.

- Robert Tanha, Toronto

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Ontario Employment Law: Parallel Jurisdiction of the Ontario Human Rights Tribunal and Courts in Dismissal and Discrimination Claims

In a recent case, Salvador v. Genpak LP, an applicant made an application to the Ontario Human Rights Tribunal alleging discrimination in employment on the ground of disability. The respondent employer opposed this application on procedural grounds, aruing that the application should be dismissed since the applicant had already had a parallel civil claim in that he had already filed a Statement of Claim against it in Small Claims Court alleging that he had been wrongfully dismissed.

Section 34(11) of the Ontario Human Rights Code, upon which the employer relied, states:

34 (11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled. 2006, c. 30, s. 5.

The respondent employer essentially argued that because the Small Claims action dealt with the same set of facts as the application before the Tribunal, section 34(11) required dismissal of the Code application.

The Tribunal found that this factual overlap alone was not enough to oust its jurisdiction in this case:

Having reviewed the Application and the Statement of Claim, I find that the applicant has not triggered section 34(11) because he has not raised the Code in his civil action. Similarity in the facts does not amount to duplication of legal issues. The determinative factor in this decision is that the Claim makes no mention of the Code or of any allegations of discrimination. Duplication of legal proceedings arising out of the same facts is not a basis for declining jurisdiction over an Application: see Baker v. Sears Canada, 2009 HRTO 1014 (CanLII), 2009 HRTO 1014 (CanLII), at para. 12:

The fact that the case could potentially have been commenced as a single court action alleging both wrongful dismissal and discrimination is a matter of personal choice the legislature has left up to individuals bringing such cases. It is not within the Tribunal’sjurisdiction or mandate to instruct parties where to bring their cases. The Tribunal’s function is to determine whether it has the jurisdiction to accept the Application as filed. In this case, I find the Tribunal does have jurisdiction over the matter.

If you have been wrongfully dismissed or discriminated against, contact a lawyer to be advised as to your legal rights and entitlements.

- Robert Tanha, Toronto

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Justice Scalia, Minority Rights, and Democracy

In a recent interview with California Lawyer magazine, United States Supreme Court Justice Antonin Scalia made what has become a somewhat controversial statement about gender discrimination and the United States Constitution:

You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Other commenters have already argued that Justice Scalia's answer to the question is historically questionable or that his attitudes towards proactive lawmaking by the judiciary are selective or even self-contradictory, so we need not discuss that. However, Scalia's statement does raise one further question, which is whether law derived through jurisprudence is automatically undesirable.

I would argue that this is not the case. Certainly from a democratic standpoint, we would all like to see as much law as possible enacted through elected legislative bodies. But Justice Scalia's complaint is about law designed to protect the minority. Although we would hope that our elected representatives will be as enlightened as humanly possible, the phrase "tyranny of the majority" exists for a reason.

Although we all hope - and, one believes, history demonstrates - that legislative bodies will in the long run recognize minority rights, the simple truth is that virtually across the board minority rights have first been achieved through the courts. Brown v. Board of Education and similar decisions preceded civil rights legislation in the United States. R. v. Morgentaler preceded new abortion law in Canada. Halpern v. Canada, and then the Supreme Court's reference on same-sex marriage, preceded the legalization of same-sex marriage here, and one hopes that Perry v. Schwarzenegger will similarly precede the legalization of same-sex marriage in America.

Common-law systems rely on the judiciary to do what the masses often cannot: namely, to consider the needs and wants of minorities whose rights have been imperiled or curtailed, and find if our law is wanting. This is not a perfect system, of course, but without the judiciary's ability to create, in essence, new discrimination law, the net result would be more suffering as individual rights would be trampled upon for a longer period of time. (Possibly a much longer time, if you accept the argument that highly-publicized judicial decisions of this sort can drive public acceptance for the minority right in question.)

Justice Scalia evidently believes that democratic principles trump minority rights, and this is a fair belief to have. But it is not by any means a given.

- Christopher Bird, Toronto

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Ontario Employment Law: Jurisdiction of the Ontario Human Rights Tribunal

In a recent decision, Gothard v. Clowater, the Ontario Human Rights Tribunal provides us with an important reminder: Its jurisdiction is limited by the Ontario Human Rights Code itself.

The Tribunal only has the power to decide an applicant's claim where that claim alleges discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, or disability.

The fact that an applicant has been treated "unfairly" by the employer is not enough; without a factual underpinning that brings a workplace matter within the ambit of the Code, the Tribunal may not provide compensation or relief.

As Adjudicator Judith Keene aptly notes in Gothard:

Clearly the applicant feels that he has been treated unfairly, but he does not allege that the actions to which he objects were taken because of an attempt on his part “to claim and enforce his or her rights under this Act”. The Tribunal does not have a general power to inquire into claims of unfairness outside the areas and grounds listed in the Code.

In order to establish a claim under the Code, an Applicant must provide information showing that his or her right to be free from discrimination, as provided by the Code, has been violated through the conduct of his or her employer. Only then will the Tribunal have the power to decide the matters raised and award a remedy if appropriate.

If you feel that you have been are are being discriminated against by your employer, contrary to the Ontario Human Rights Code, seek legal advice from a lawyer to determine your rights and entitlements.

- Robert Tanha, Toronto

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N.C. Student Suspended for Nose-Piercing, Claims Discrimination

She belongs to the Church of Body Modification.

Yes, it really exists.

More from CBS News.

- Garry J. Wise, Toronto

Update - October 8, 2010

Overlayered has seen this Church before.

Update - October 10, 2010

Via MSNBC:

RALEIGH, N.C. — An attorney says a federal judge has ordered a North Carolina school to admit a 14-year-old student suspended for wearing a nose piercing she says is part of her religion. Attorney Jon Sasser says U.S. District Judge Malcolm Howard announced the decision Friday.

- GJW

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A U.S. Conservative View on Canada's Human Rights Tribunals

The Legal System that is Canada, from Ted Frank at Point of Law:

The University of Windsor might have a bit more trouble recruiting a dean for its law school after an Ontario Human Rights Tribunal announced that it reserved for itself the right to fire any dean hired and replace them with a complainant, Emily Carasco, who has argued that the search committee's consideration of allegations of plagiarism in her unsuccessful quest for the job reflected gender discrimination.

Yes, Mr. Frank, pretty soon nobody will seek appointment as dean of any Candian law school. And it will all be because of those nasty human rights tribunals.

When pigs (or conservatives) fly.

- Garry J. Wise, Toronto

Update:

Professor David Doorey takes on the anti-human rights brigade:

What interests me is the outrageous hostility towards the human rights tribunal and human rights law in both the [National Post] Editorial (by Jonathan Kay), but even more so by the loads of mouth-foaming commentators to the piece.

...If we abolish human rights statutes, then there would be no remedy for a person who, though most qualified, is denied a job because of her sex, religion, race, etc. But that seems to be what the Post and its readers want. Or are they making some other sort of argument that I can’t see through all the slobbering hatred and anger in their words?

- GJW

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"I Asked for a Lawyer..."

Steve Cruikshank, 28, Newmarket (via the Toronto Star):

“I asked for medical attention and they said ‘No’, that I was ‘barely bleeding.’ I asked for a lawyer and wasn’t given access. I asked to make a phone call and they laughed.”

About three hours later, he was released without charge.

- Garry J. Wise, Toronto

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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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Ontario Human Rights Tribunal "Overwhelmed" With Cases: Toronto Star

The Toronto Star's Moira Welsh looks at the Ontario Human Rights Tribunal, nearly two years after the implementation of sweeping procedural changes in the adjudication of human rights complaints in the Province:

The new system was created to clear away a massive backlog. Prior to June 2008, human rights complaints were vetted by the Ontario Human Rights Commission, which would decide which cases would be sent to the tribunal for hearing. It took years to investigate complaints and decide whether to pass them on to hearings or mediation.

In 2009, the tribunal received 3,400 new cases, a jump of more than 1,000 from the old system.

...Under the old system, there would be a final decision in only 15 hearings a year. Now, the tribunal is issuing decisions at least 15 times each month.

See: Complaints overwhelm human rights watchdog, which includes discussion of a number of recent Tribunal decisions.

I'll note that this article doesn't include much evidence to support its claim that the Tribunal itself is "overwhelmed" or otherwise unable to handle its increasing case load, but hyperbolic headline aside, it's still well worth reading.

- Garry J. Wise, Toronto

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Section 13

Our friend BCL provides an update on the (lack of) movement to amend the hate speech provisions of Canada's federal and provincial human rights codes.

See: Section 13 Repeal On Back Burner

- Garry J. Wise, Toronto

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Not an Acceptable License Plate?

Apparently, IM GAY does not cut it on Oklahoma's highways. Lawsuit follows:

The Oklahoma Tax Commission, the organization that reviews and approves applications for personalized license plates in the Sooner State, has reportedly allowed the following to appear on the state’s plates: STR8FAN and STR8SXI.

But the Tax Commission has denied a college student’s request to put IM GAY on his license plate. The student, Keith Kimmel, 28, of Norman, has sued, arguing that the decision violates his First Amendment rights. Click here for the story, from the Oklahoman.

The backstory: The Oklahoma Tax Commission turned Kimmel down due to an internal rule against special license tags that “may be offensive to the general public.”

Via WSJ Law Blog

- Garry J. Wise, Toronto

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On Succession Planning and Discrimination

William Neuman of New York Times looks today at the retirement of McDonald's President and Chief Operating Officer, Ralph Alvarez, largely for medical reasons, after only three years as second-in-command at the international burger giant.

An 'expert' cited in the article, At McDonald’s, a Retirement Stirs Questions, is quite perturbed, apparently, by the company's succession planning processes:

Nell Minow, a founder of the Corporate Library, which rates the performance of boards, said “high turnover at the sub-C.E.O. level is always a risk factor.”

... But she also said that Mr. Alvarez’s chronic health condition, although not life-threatening, should have made the board wary of promoting him to such a position in the first place, given McDonald’s recent history.

“It’s an important part of the C.E.O. succession planning process that you have to have a very frank conversation about health issues,” Ms. Minow said. “Somebody was not asking the right questions there.

In other words, Ms. Minow is critical of the McDonald's board for the company's non-discriminatory promotion of Mr. Alvarez.

In Canada, those "right questions" about health and disability may well be unlawful to even ask.

Is Ms. Minow actually advocating a corporate culture in which potentially-disabled people simply need not apply for promotion to high executive positions?

(If so, I suppose we shouldn't even talk about women of child-rearing age).

What nonsense.

Once again, thank goodness for our Canadian human rights codes and tribunals.

- Garry J. Wise, Toronto

Update: January 1, 2010

Ms. Minow has responded with a comment to this post:

I appreciate the post, but you misunderstood my comment. I have disabled family members and my family has worked for and written about the rights of the disabled. This is not about disability; it is about the obligation of boards of directors to have a frank and candid conversation about elements related to succession planning for key corporate officers. I understand why that distinction may not have been clear from the brief excerpt of my comments included in the article, but before you assume the worst you might want to consider looking a bit further.

I'm not sure how responsive this comment is to the concerns raised in the initial post, but we very much appreciate the feedback.

- GJW

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Canadian Mandatory Retirement Dealt 'Fatal Blow' by Ruling

If mandatory retirement is not dead, it was certainly dealt a fatal blow by a Canadian Human Rights Tribunal ruling in two cases decided August 28, 2009.

George Vilven and Robert Kelly are two Air Canada pilots who were forced to retire at age 60. Both Vilven and Kelly felt that being forced to retire when they were clearly able to perform their jobs was obvious discrimination.

S. 15(1)(c) of the Canadian Human Rights Act, however, gave employers in the federally regulated sphere a defence to a complaint of discrimination if they could show there was a “normal retirement age” in a particular industry.

Yet, s. 15(1)(c) of the Canadian Human Rights Act remained anomalous as jurisdictions from British Columbia to Newfoundland abandoned mandatory retirement. As the workforce got older it made less sense to force workers to retire, especially when some wanted or needed to continue working.

It has been a difficult fight for both pilots. The case was first heard at the Canadian Human Rights Tribunal in the summer of 2007. The Tribunal then found that Air Canada had indeed shown there was a normal retirement age of 60 in the airline industry. The Tribunal rejected the notion that s.15(1)(c) was unconstitutional since, they believed, there was no affront to a person’s dignity when a generous pension plan was negotiated between an employer and a union.

The pilots applied to the Federal Court of Canada for judicial review on the grounds that the constitutional question was not properly considered. The Federal Court agreed and haughtily sent the case back to the Tribunal, with step by step notes as to how to properly consider the equality guarantee under the Charter.

The second time around the Tribunal got it right, finding that s.15(1)(c) could not be justified as a reasonable limit on equality rights. The Tribunal therefore ordered the pilots’ reinstatement with full benefits and entitlements.

Before this decision mandatory retirement still affected 10% of the Canadian workforce. Now employers in the federal sphere are scrambling to navigate the implications of this decision – and workers who have been adversely affected by mandatory retirement have finally been vindicated by the Canadian Human Rights Tribunal.

The full text of this ruling is available online. See: George Vilven and Canadian Human Rights Commission and Robert Neil Kelly and Canadian Human Rights Commission, 2009 CHRT 24 (CanLII).

- Stephen Ellis, Toronto

UPDATE: September 29, 2009

Air Canada announced today that it is appealing the recent CHRT decision that ruled that s.15(1)(c) was unconstitutional. Air Canada states that the Tribunal did not apply the proper rules as set out by the Supreme Court of Canada which permit mandatory retirement when such a limit is collectively bargained. The Pilots say the are ready for the fight. Stay tuned, it looks as though there may be one more chapter to this story.

- Stephen Ellis

Stephen Ellis practises Employment Law in Toronto.

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Canadian Human Rights Commission Releases Report on Section 13 Hate Provision

The Canadian Human Rights Commission has tabled a report to Parliament on the nation's hate laws.

Titled Special Report to Parliament - Freedom of Expression and Freedom from Hate in the Internet Age, the report recommends amendments to Section 13 of the Canadian Human Rights Code.

Section 13 is the provision of the federal Act that addresses publication of extreme hate speech online and elsewhere:

The Commission is mindful of the changing nature of hate activity, especially with regard to hate on the Internet. The Commission is also aware of the criticism by some of how the Commission deals with section 13 cases. Both the Criminal Code and the CHRA could be amended to better deal with current realities. This section reviews the Commission’s observations and recommendations.

The current text of Section 13 is as follows:

Hate messages

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

nterpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

Interpretation

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

R.S., 1985, c. H-6, s. 13; 2001, c. 41, s. 88.

The proposed amendments seek to clarify the definitions of "hatred" and "contempt" under the CHRA and the nation's Criminal Code.

As well, procedural safeguards are suggested, including changes allowing the Commission to summarily dismiss groundless complaints at an early stage and to make awards of costs against a complainants who file frivolous complaints that abuse the Tribunal process:

RECOMMENDATION 1

It is recommended that both the Criminal Code of Canada and the Canadian Human Rights Act continue to contain provisions to deal with hate on the Internet.

RECOMMENDATION 2

It is recommended that the Canadian Human Rights Act be amended to provide a statutory definition of "hatred" and "contempt" in accordance with the definition applied by the Supreme Court of Canada in Taylor.

RECOMMENDATION 3

It is recommended that the Canadian Human Rights Act be amended to allow for an award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process.

RECOMMENDATION 4

It is recommended that section 41 of the Canadian Human Rights Act be amended to include a provision that allows the dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt.

RECOMMENDATION 5

It is recommended that the penalty provision in section 54(1)(c) of the Canadian Human Rights Act be repealed..

The proposed amendments will likely do little to satisfy the more extreme and vocal critics of the nation's human rights commissions, who view all provincial and federal human rights legislation as an egregious affront to freedom of speech in Canada.

Our regular readers will recall that I've never shared that opinion - I've simply not been of the view that the CHRA was ever particularly flawed or broken.

If accepted by the Harper government, however, the proposed changes will go a long way toward addressing many of the critics' most commonly stated concerns, by bringing additional balance, certainty and procedural fairness to the federal tribunal process.

I have no difficulty acknowledging that the proposed changes will improve what is already a reasonably good system - the good news is the proposed changes seek to do so without threatening our legislation framework for addressing the most extreme examples of online hatred.

More on this from the Ottawa Citizen - see: Rights commission rejects call to quit policing online hate.

Also see CBC: Human Rights Commission says it should probe online hate messages

- Garry J. Wise, Toronto

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On Universal Jurisdiction, Those Pesky Spanish Judges and Canada's War Crimes Legislation

The Washington Post looks at Spain's National Court justices, who seek to hold the United States and other nations accountable for alleged war crimes and crimes against humanity, wherever they have occured, based on the legal principle of universal jurisdiction:

Judges at Spain's National Court, acting on complaints filed by human rights groups, are pursuing 16 international investigations into suspected cases of torture, genocide and crimes against humanity, according to prosecutors. Among them are two probes of Bush administration officials for allegedly approving the use of torture on terrorism suspects, including prisoners at Guantanamo Bay, Cuba.

The judges have opened the cases by invoking a legal principle known as universal jurisdiction, which under Spanish law gives them the right to investigate serious human rights crimes anywhere in the world, even if there is no Spanish connection.

... Carlos Slepoy, a Spanish-Argentine lawyer who helped pursue Scilingo, said the universal-jurisdiction cases have valuable secondary effects. Officials targeted by Spanish judges need to be careful about where they travel; Spanish arrest warrants are generally enforced throughout Europe but also sometimes in Mexico and other countries.

...Other advocates, however, point out that Israel and the United States have embraced the principle of universal jurisdiction when it suits them.

In 1960, Israeli agents kidnapped Nazi war criminal Adolf Eichmann in Argentina and tried him in Israel; he was convicted and executed.

More recently, the U.S. Department of Justice has supported efforts to have Spain pursue investigations against two alleged Nazi concentration camp guards living in the United States. The Justice Department lacks the jurisdiction to prosecute the men for crimes committed decades ago in Europe but would like to deport them to Spain to stand trial there.

See: Spain's Judges Cross Borders In Rights Cases - High-Ranking U.S. Officials Among Targets of Inquiries.

Also see Wikipedia's article on universal jurisdiction, for a good backgrounder.

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Canada Convicts Rwandan War Criminal

Earlier this week, on May 22, 2009, a 42 year-old Rwandan man was convicted in the Quebec Superior Court on seven counts of genocide, war crimes, and crimes against humanity in Canada's first prosecution under the 2000 Crimes Against Humanity and War Crimes Act.  

Canadian Press  reported on the conviction:

MONTREAL — A Rwandan man accused of murdering and raping Tutsis during that country's bloody genocide some 15 years ago has become the first person ever to be convicted under Canada's war crimes legislation.

Lawyers for Desire Munyaneza immediately said they would appeal a Quebec Superior Court ruling that found their client guilty of seven charges stemming from war crimes committed during the 1994 Rwandan genocide.

Quebec Superior Court Justice Andre Denis said he was convinced that Munyaneza was guilty of all the charges against him, making Munyaneza the first person to be convicted under Canada's Crimes Against Humanity and War Crimes Act.

Munyaneza, a 42-year-old father of two, faced seven charges related to genocide, war crimes and crimes against humanity for his role in massacres and rapes near Butare, Rwanda, between April and July of 1994.

Sections 6 and 9 of the federal Crimes Against Humanity and War Crimes Act  (excerpted below) grant jurisdiction to Canadian courts over war crimes and related offences committed outside Canada including crimes involving torture and conspiracy to commit to torture: 

OFFENCES OUTSIDE CANADA

Genocide, etc., committed outside Canada

6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada

(a) genocide,

(b) a crime against humanity, or

(c) a war crime,

is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

Conspiracy, attempt, etc.

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.

Punishment

(2) Every person who commits an offence under subsection (1) or (1.1)

(a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and

(b) is liable to imprisonment for life, in any other case.

Definitions

(3) The definitions in this subsection apply in this section.

"crime against humanity" 
«crime contre l’humanité »

"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"genocide" 
«génocide »

"genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.

"war crime" 
«crime de guerre »

"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission...

PROCEDURE AND DEFENCES

Place of trial

9. (1) Proceedings for an offence under this Act alleged to have been committed outside Canada for which a person may be prosecuted under this Act may, whether or not the person is in Canada, be commenced in any territorial division in Canada and the person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

- Garry J. Wise, Toronto

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