Sunday, April 30, 2006

Supreme Court of Canada: All Ontario Tribunals Must Apply Human Rights Code

The Supreme Court of Canada has issued an extremely important ruling, which requires all government tribunals to apply and enforce the Ontario Human Rights Code.

According to the Court, the Ontario Human Rights Commission no longer has exclusive jurisdiction to consider human rights code issues. The Code is part of the fundamantal law of the Province, and all tribunals are therefore mandated to consider the implications of the Human Rights Code in their deliberations.

In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, Justice Bastarache, for the majority of the Court, stated:

"In general, encouraging administrative tribunals to exercise their jurisdiction to decide human rights issues fulfills the laudable goal of bringing justice closer to the people. "

Previously, tribunals had been reluctant to venture into such considerations. Human Rights issues were treated as the exclusive domain of the Human Rights Commission, and often, referred to the Himan Rights Commission for decision, causing delay and often, added expense.

See the press release below from the Ontario Human Rights Commission:

April 25, 2006

Supreme Court rules government tribunals must apply Human Rights Code

Toronto - The Supreme Court of Canada released a far-reaching decision declaring that the Ontario Social Benefits Tribunal has the authority to decide whether a section of the Ontario Disability Support Program Act, 1997 (the "ODSPA") breaches the Ontario Human Rights Code (the "Code").

The Supreme CourtÂ’s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), released Friday, involves two persons who were denied income support from the Ontario Disability Support Program (the "ODSP"). The ODSPA limits which disabilities are eligible for ODSP coverage, and at the Social Benefits Tribunal, the appellants sought to argue that this contravened the Code. The Tribunal declined to hear the case, on the ground it lacked jurisdiction.

The Supreme Court allowed the Ontario Human Rights Commission (the "Commission") to intervene in this case, agreeing that the Commission had an interest in the outcome, and that it had unique arguments to offer. The Commission argued that because of the Code's precedence over all other Ontario laws, even those tribunals not specifically mandated to deal with human rights issues must ensure their decisions conform to the Code.

In its ruling, the Supreme Court agreed with this position, stating that, "The Code is fundamental law. The Ontario legislature affirmed the primacy of the Code in the law itself, as applicable both to private citizens and public bodies. Further, the adjudication of Code issues is no longer confined to the exclusive domain of the Commission. The legislature has thus contemplated that this fundamental law could be applied by other administrative bodies and has amended the Code accordingly."

During its 2005 consultation on strengthening Ontario's human rights system, the Commission noted that the general reluctance of tribunals to apply the Code contributes to the growing demand on the Commission's services and resources. A number of stakeholders also expressed the view that tribunals should actively be considering the Code in their decisions, something for which this decision now sets a

Commenting on the decision, Chief Commissioner Barbara Hall said that, "This decision supports our view that administrative tribunals should be addressing human rights issues as they arise, especially where a vulnerable applicant is advancing arguments in defence of their human rights. Under those circumstances, it would be rare for a tribunal not to be the most appropriate one to hear the entire dispute."

- Garry J. Wise, Toronto

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N.B. Court: Same-Sex Adultery is Ground for Divorce

In Canada, a Divorce on the basis of "breakdown of a marriage" cannot be granted until at least one year has passed from the date the spouses separated.

Under Section 8 (2) (b) of the Divorce Act, however, a Divorce for grounds, such as adultery or cruelty, may be granted immediately, before the one year wait-period has elapsed.

In September 2005, I wrote about a case in which the British Columbia Supreme Court expanded the traditional, legal definition of adultery to include extramartital same-sex relations. Previously, adultery had been interpreted as being restricted to extra-marital relations between parties of opposite genders.

Another case, reported by CTV Newsnet today, shows the same conclusions being reached in New Brunswick.

I think we can consider this issue as settled, at this point.

N.B. court allows divorce over same-sex adultery
Updated Sun. Apr. 30
2006 12:40 AM ET News Staff

A court has granted a New Brunswick man a divorce because his wife committed same-sex adultery.

"It's going to help somebody else not to have to go through this," Pascal Thebeau of Saint John said outside court on Friday.

"If it would have been the opposite sex, I would have had my divorce last year."

Adultery isn't defined in legislation, and under the common law, it's traditionally been considered to be extramarital sex between a man and a woman. Thebeau then went to court to have a broader definition recognized in New Brunswick. A judge agreed, noting that since gays and lesbians can marry, the law should treat them equally when it comes to adultery.

"Equal treatment before the law endows rights. What is sometimes overlooked is that it also imposes responsibilities. Equal treatment means equal obligations, equal responsibilities, and the acceptance of equal consequences," Madam Justice Anne D. Wooder wrote in her judgment.

The ruling doesn't break completely new national legal ground. A similar ruling in B.C. last year involved a woman whose husband had an affair with another man.

Gay and lesbian groups say a broader definition of adultery is welcome. "The gay community is getting divorces too," said Mack MacKenzie, a gay rights activist.

With a report from CTV's John Vennavally

- Garry J. Wise, Toronto

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Monday, April 24, 2006

NYC Judge: Web-surfing while working not grounds for termination

If you are reading this at the office, you might be interested in
this story today from Yahoo News:

NEW YORK - Saying surfing the web is equivalent to reading a newspaper or talking on the phone, an administrative law judge has suggested that only a reprimand is appropriate as punishment for a city worker accused of failing to heed warnings to stay off the Internet.

Administrative Law Judge John Spooner reached his decision in the case of Toquir Choudhri, a 14-year veteran of the Department of Education who had been accused of ignoring supervisors who told him to stop browsing the Internet at work.

The ruling came after Mayor Michael Bloomberg fired a worker in the city's legislative office in Albany earlier this year after he saw the man playing a game of solitaire on his computer.

In his decision, Spooner wrote: "It should be observed that the Internet has become the modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work."

He added: "For this reason, city agencies permit workers to use a telephone for personal calls, so long as this does not interfere with their overall work performance. Many agencies apply the same standard to the use of the Internet for personal purposes."

Spooner dispensed the lightest possible punishment on Choudhri, a reprimand, after a search of Choudhri's computer files revealed he had visited several news and travel sites.

Martin Druyan, Choudhri's lawyer, called the ruling "very reasonable."

- Garry J. Wise, Toronto

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Saturday, April 22, 2006

Neil Young on Canada, America, Freedom of Speech and War.

See the video here (click):

Update: April 28, 2006 - Listen to Living With War, the new Neil Young album here. His own comments about the album can be found on the Reprise Records website:

...this is about exchanging ideas... it's about getting a message out. It's about empowering people by giving them a voice. I know not everyone believes what I say is what they think. But like I said before... red and blue is not black and white. We're all together. It's a record about unification." - Neil Young (Apr 18, 2006).
Also interesting is a "behind the scenes" view from Alicia Morgan, one of 100 background singers at Young's controversial "Impeach the President" recording sessions. Her take can be found here and here (thanks, Cathie from Canada):

On Wednesday, I was at work when I got a call for a Neil Young session the next day. Needless to say, I was excited about it - Neil Young is one of my musical heroes. When my husband and I got to Capitol, we found 98 other singers, a collection of L.A.'s finest. All I knew was that we were singing on a new Neil Young record, but when the lyrics we were supposed to sing flashed on the giant screen, a roar went up from the choir. I'm not going to give the whole thing away, but the first line of one of the songs was "Let's impeach the President for lyin'!" Turns out the whole thing is a classic beautiful protest record. The session was like being at a 12-hour peace rally. Every time new lyrics would come up on the screen, there were cheers, tears and applause. It was a spiritual experience. I can't believe my good fortune at being a part of this.

- Garry J. Wise, Toronto

Wednesday, April 19, 2006

"Blawging" in Canadian Lawyer Magazine

Are blogs by lawyers the "newest thing?"

In the January 2006 edition of Canadian Lawyer Magazine, writer Kevin Marron discusses this phenomenon, and suggests that law bloggers are in fact "changing attitudes about what lawyers can say, and how they can say it."

WISE LAW BLOG received brief mention in Mr. Marron's article, "The Risks and Rewards of 'Blawging,'" which is posted here as a P.D.F.

Finally, as I note that we have officially begun our second year online, let me thank our readers and contributors for their interest and support throughout in this new adventure.

Hopefully, we will continue to find interesting things to write about, and in the process, play at least a small role in making current legal information (as well as our own two cents) accessible online.

Your comments are always appreciated.

- Garry J. Wise, Toronto

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