Human Rights Claims Run Amok

Now, this will be a human rights appeal that really monkeys with the legal system.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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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:

• refer to the investigator as a "thug" (00:57);
• reference Human Rights Commissioner Lori Andreychuk as a thug (00:56, 1:43);
• refuse to acknowledge the lawful authority of the Commission itself, throughout;
• refer to the investigator as a potential instrument of a fascist complainant (5:14);
• accuse the investigator of "hunting for a thought crime." (2:53)

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

Visit our Toronto Law Firm website: www.wiselaw.net

EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE

An Update on Ontario's First Family Day

On October 11, 2007, Premier Dalton McGuinty established “Family Day” as a new statutory holiday in the Province of Ontario to fall on the 3rd Monday in the month of February.

Last week the Canadian Press reported on some controversies arising as a result of the new statutory holiday:

Ontario's Employment Standards Act calls for nine paid statutory holidays a year, including Family Day, so many workers are being told they won't qualify for the new holiday - which falls on the third Monday of February each year - until it is negotiated in future contracts.

There are concerns that many unionized workers will not get Family Day unless their existing contracts specifically allow for an additional holiday, which CUPE Ontario president Sid Ryan warned Tuesday will lead to labour unrest.

Some employers who have been advised that they do not qualify for Family Day in accordance with the Employment Standards Act and their current contracts have been offered the option of a “trade off” with another day off to which they are currently entitled.

In addition, the City of Toronto alone expects a cost of 5 million dollars to provide municipal and transit workers the day off work. Police, firefighters and federal employees such as banks and airlines, are expected to be at work on Family Day.

There has also been some recent controversy with respect to how Family Day will affect Court dates.

McGuinty said he isn't worried about people who have been issued traffic tickets telling them to appear in court Feb. 18 - when the courts will be closed - and he dismissed opposition claims that those charged with traffic offences could be off the hook if their original court dates are not rescheduled.

"We're going to have to find a way to iron out some of the wrinkles that develop as we bring in place the very first Family Day," McGuinty said. "Undoubtedly there were wrinkles of this nature when they first put in place the original eight statutory holidays."

Attorney General Chris Bentley said he is confident all criminal charges originally set for Feb. 18 court dates have been rescheduled, and that local governments have had time to reschedule traffic cases in their jurisdictions.

Ontario’s first Family Day is scheduled for February 18, 2008.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Another Blogger Free Speech Issue in U.S. Family Court

Last week, we wrote about a Vermont Judge's order that publication of a man's "divorce blog" cease. In that matter, the Court acted on a claim by the blogger's wife that she was harassed by the blog's ongoing, "fictionalized" account of their failed marriage.

The Providence Journal reports today on another case that raises parallel constitutional issues regarding blogs and freedom of expression.

A Rhode Island family court has issued an order precluding a blogger from publishing information that identifies specific children whose parents are involved in a bitter custody dispute.

The Order requires the blogger:

"... to remove any and all written and pictorial information pertaining to the children in the above matter, from the inception of publication to the present and henceforth, and to cease publication of the blog as it pertains to these children. That mother and father are ordered to facilitate cooperation in this process.”

According to the Journal report,

Now, Ms. Grant — who heads the Parenting Project based at the Mathewson Street United Methodist Church in Providence — is asking the state Supreme Court to overrule Family Court Judge John A. Mutter, saying his order violates her constitutional rights to due process and freedom of speech.

And so, the case is emerging into a broader legal battle, which addresses both the right to free speech on the Internet and the privacy rights of children in Family Court. Each side says it is trying to protect the children.

“There is no question the Internet and blogging are the new frontier in free speech law,” said Rodney A. Smolla, a First Amendment scholar and dean of the law school at Washington and Lee University in Lexington, Va. “One obvious reason is the kind of statement that used to be made in backyard gossip or around the water cooler can now be spread around the world. I think the courts are in the midst of an ongoing effort to translate traditional free-speech doctrines into this new arena.”

Different First Amendment standards have always applied when cases involve children, Smolla said. Courts are likely to uphold restraints aimed at protecting the identity and “significant privacy interests” of children, he said. But, he said, “That doesn’t mean you can ban all commentary on cases involving children.”

(h/t Kevin at LexBlog)

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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A parabola is a mathematical curve and not a Biblical story – Federal Court Confirms

In a decision released on January 7th 2008 Mr. Justice Leonard Mandamin of the Federal Court of Canada set aside the order of an Immigration and Refugee Board of Canada (IRB) adjudicator denying the refugee claim of a Chinese woman Pin Xian Xin.

Ms. Xin entered Canada illegally and made a refugee claim, saying she feared persecution in China because of her membership in an underground church and for breaching China's one-child policy.

At the hearing of her claim she was repeatedly asked by an IRB adjudicator about Bible "parabolas." The IRB ruled Ms. Xin could not be a Christian -- partly because she did not know what a "parabola" is and could not answer the question "What is your favourite parabola?"

Justice Mandamin ruled:

"A parabola is a mathematical curve and not a Biblical story……………..the applicant cannot be faulted for the confusion."

Full Text of the Judgement: Xin v. Canada (Citizenship and Immigration)

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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“Wrongful Life” versus “No Life” - Court of Appeal overturns Wrongful Life Decision

In a decision released on January 7th 2008 the Ontario Court of Appeal has ruled that a doctor owed no duty of care to future children not to cause them harm in prescribing a fertility medicine to their mother.

The brief facts of the case giving rise to the law suit and the appeal are that the Respondent, Carolyn Bovingdon, consulted the Appellant, Dr. Hergott, an obstetrician, when she failed to begin ovulating after discontinuing birth control pills. Dr. Hergott prescribed the fertility drug Clomid. After taking the prescribed course of Clomid, Ms. Bovingdon conceived and gave birth to severely disabled premature twins. The Clomid was found to be the first link in a chain of causation that led to the conception of the twins, the premature birth of the twins and the damage caused to them as a result of their premature birth.

The action against Dr. Hergott was based on his failure to provide all the necessary information to allow Ms. Bovingdon to make an informed decision whether to take Clomid, the extent of the increased risk of having twins by taking the drug, the potential for premature birth when carrying twins and the consequent injury this might cause to them.

The jury found the doctor negligent for failing to provide the necessary information to the mother. Following those findings, the trial judge ruled as a matter of law, that the doctor also owed a duty of care to the twins. Because he breached that duty, they as well as their parents were entitled to recover damages. The trial judge concluded that the claim by the twins did not come within the category of action known as “Wrongful Life” (the law in Canada does not recognize a cause of action for “Wrongful Life”) because this was not a case where the doctor’s negligence only caused the twins to be born, the doctor’s negligence also caused their damage.

The trial judge reasoned that the Clomid caused the twinning, the twinning caused the prematurity, and the prematurity caused the damage to the children. Therefore, the Clomid caused the damage and since the doctor had prescribed the Clomid without warning the mother of the risks, the doctor had thereby caused the harm to the children. The judge concluded that the case was therefore not an action for wrongful life, but one where the doctor was responsible for the damage and therefore the twins had a cause of action for damages.

The Court of Appeal upheld the trial court’s ruling of negligence against Dr. Hergott for failing to provide the necessary information to the mother, but reversed its decision on the issue of Wrongful Life and Duty of Care owed to the twins.

Writing for a unanimous bench, Madam Justice Feldman wrote:

"The common law world has struggled for the past several decades with the debate over whether a child born with defects or injuries suffered in utero or upon conception can sue a doctor for negligence. In deciding whether to recognize a “wrongful life” claim, the key question is, if a child would not have been born at all without the doctor’s negligence, can such a child sue the doctor for the value of the difference between a life burdened with physical or mental defects and no life at all? How can the child be compensated for being born? How can a court give damages that measure the value of no life versus a damaged life? And from a metaphysical point of view, does it make sense to allow such an action, given that if the child had not been born, he or she would not have been able to bring the action at all?”

The Court of Appeal held:

“Clomid had no pharmacological effect on the children. Dr. Hergott did not cause the damage to the children. Rather, by failing to give Mrs. Bovingdon all the information she needed to decide whether to take the drug to augment her fertility, he caused or contributed to the birth of the twins.”

The court concluded that because the doctor did not cause the harm to the twins, the trial judge erred by finding that this was not a case of Wrongful Life.

Although the court found that the children’s claim against the doctor fell into the category of claims designated as “wrongful life,” and therefore no claim was made out on behalf of the twins, the court left it open by commenting:

“Furthermore it is undecided whether the courts of this province would necessarily dismiss every claim for “wrongful life”.

In any event the court also found that Dr. Hergott owed no duty of care to the twins, who therefore had no cause of action against him. The court held:

“The Appellant had no duty of care to the future children not to cause them harm in prescribing Clomid to the mother. The doctor owed a duty of care only to the mother, which duty consisted of ensuring that she possessed knowledge sufficient to make an informed decision whether to take Clomid. This knowledge included the increased risk of conceiving twins arising from the drug, the increased potential for premature birth in a twin pregnancy, and the possible harm to the children that could result from premature birth.”

Justice Feldman further wrote:

“Because I have concluded that there was no duty of care and therefore no cause of action by the twins, it is not necessary for me to decide whether and in what circumstances the courts of this province may recognize a cause of action for “wrongful life.”

Full text of the decision: Bovingdon v. Hergott

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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A Deadline Is A Deadline

According to a National Post report, a traffic jam cost a U.S. law firm $1 Million in legal fees.

Toshiba Corporation’s lawyers Morrison & Foerster could not apply for about $1-million in attorneys' fees awarded after a successful lawsuit because its courier got stuck in a traffic jam and did not make it to the courthouse in time to file the required documentation on the deadline date.

“The entirely foreseeable obstacle of traffic in Southern California in the late afternoon . . . cannot justify an enlargement of time” U.S. District Court Judge Cormack Carney noted.

Moral of the story: Do not leave court filings to the last minute!

- Shashi K. Raina, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Saturday at the YouTubes

- Garry J. Wise, Toronto

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Ezra's Day in "Kangaroo Court" Lights up the Canadian Blogosphere

We discussed neoconservative Canadian journalist/lawyer Ezra Levant's issues with the Alberta Human Rights and Citizenship Commission in a previous post.

He attended yesterday with counsel before the Commission for what he described as an "interrogation" by a "kangaroo court." He delivered an opening statement, which speaks for itself, excerpted in part below:

...I am here at this government interrogation under protest. It is my position that the government has no legal or moral authority to interrogate me or anyone else for publishing these words and pictures. That is a violation of my ancient and inalienable freedoms: freedom of speech, freedom of the press, and in this case, religious freedom and the separation of mosque and state. It is especially perverted that a bureaucracy calling itself the Alberta human rights commission would be the government agency violating my human rights. So I will now call those bureaucrats “the commission” or “the hrc”, since to call the commission a “human rights commission” is to destroy the meaning of those words.

I believe that this commission has no proper authority over me. The commission was meant as a low-level, quasi-judicial body to arbitrate squabbles about housing, employment and other matters, where a complainant felt that their race or sex was the reason they were discriminated against. The commission was meant to deal with deeds, not words or ideas...

Buckdog is thinking of selling 'Free Ezra Levant' T-shirts.

BigCityLib is hoping he plays "banjo or juggles or something" in the promised and much-anticipated video.

UPDATE:

Dawg "sincerely hope[s] that the Commission lets him off. That would be just the comeuppance he deserves." He also notes that BigCityLib now has videos, but cautions, "Don't waste your popcorn."

Law Is Cool also weighs in with Mr. Levant's "proudest moment" and video links

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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On Photographing The Boss, Asleep On the Job

Emailing those cellphone photos you've just taken of your boss asleep on the job might not be such a good idea, after all, if you are a Canadian public service employee.

It could get you suspended.. or worse.

The Globe and Mail reports on a decision of Canada's Public Service Labour Relations Board in Nesrallah v. Treasury Board (Public Service Commission):

... Ms. Nessrallah went too far when she took the picture and sent it to four others via an e-mail that said: “Warning: This is what happens if you work too hard! Well, at least he made up for the time he slept by playing cards at 4:30! Pas de farce!”

“I believe that [Ms. Nessrallah] meant to embarrass or humiliate her manager by taking a photograph of him asleep at his desk and forwarding it to her colleagues,” Mr. Quigley wrote without identifying the manager. “This grievance is therefore dismissed.”

Ms. Nessrallah's lawyer, Sean McGee, argued at the hearing that the case was about whistle-blowing. He said Ms. Nessrallah had worked in labour relations and human resources for years and understood “the importance of gathering facts before making allegations, and that is why she took the photograph of her manager asleep at his desk.” While the suspension was reduced to one day's pay, Mr. McGee argued even that was excessive.

(h/t - Thoughts from a Management Lawyer)

......

Now, little did I realize before researching this post that there is, in fact, a veritable catalogue of You Tube video selections in the "Boss Sleeping on the Job" genre:


(OK, so it's not the most exciting video you've ever seen. What did you expect? The guy's sleeping...)

And at the other end of the spectrum, Some firms are making naptime a part of the workday.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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US Supreme Court Demonstration: 80 Guantanamo Protesters Jailed

New York Times:

WASHINGTON (AP) -- Eighty people were arrested at the Supreme Court Friday in a protest calling for the shutdown of the U.S. military prison at Guantanamo Bay, Cuba.

Demonstrators wearing orange jumpsuits intended to simulate prison garb were arrested inside and outside the building in the early afternoon. ''Shut it down,'' protesters chanted as others kneeled on the plaza in front of the court.

They were charged with violating an ordinance that prohibits demonstrations of any kind on court grounds. Those arrested inside the building also were charged under a provision that makes it a crime to give ''a harangue or oration'' in the Supreme Court building.

The maximum penalty is 60 days in jail, a fine or both.

Regular readers will connect the dots...

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Osgoode Hall - Canadian Lawyer's Top Law School

Osgoode Hall Law School, my alma mater ('84), has again been named Canada's top law school:

Osgoode is again ranked number one law school in Canada.

York's Osgoode Hall Law School has been ranked the number one law school in Canada in Canadian Lawyer magazine’s 2008 Law School Survey. It is the second time in three years that Osgoode has taken top honours in the annual survey, winning previously in 2006.

(h/t - Mike Fata)

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Journalist Ezra Levant and Human Rights Commissions

Apparently, National Post writer Ezra Levant has his own issues with the Alberta Human Rights and Citizenship Commission:

Today at 2 p.m. I will appear before an Alberta "human rights officer" for an interrogation. I am being interrogated for the political crime of publishing the Danish cartoons in the Western Standard nearly two years ago.

As a lawyer, I've been in different courts and tribunals, but I've never experienced a kangaroo court first-hand. I will have a more comprehensive report later today.

We linked to Mr. Levant's recent exposé of Canada's human rights commissions, Censorship In The Name Of 'Human Rights, last month.

I do not recall any disclosure of this personal matter in that article. Perhaps it is a new issue that was not known to him at the time.

(h/t: Buckdog)

The Calgary Herald also has the story.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Journalists Love Blogs

According to research by The Brodeur Strategic Planning Group, blogs are playing an increasingly influential role in the reporting habits of mainstream journalists:

Blogs are a regular source for journalists. Over three quarters of reporters see blogs as helpful in giving them story ideas, story angles and insight into the tone of an issue.

Nearly 70 percent of all reporters check a blog list on a regular basis. Over one in five (20.9%) reporters said they spend over an hour per day reading blogs. And a total of nearly three in five (57.1%) reporters said they read blogs at least two to three times a week.

Journalists are increasingly active participants in the blogosphere. One in four reporters (27.7%) have their own blogs and nearly one in five (16.3%) have their own social networking page. About half of reporters (47.5%) say they are "lurkers" -- reading blogs but rarely commenting.

UPDATE: January 13, 2007

More news from blogs about blogs:

• Paulitics on the reach of blogs: What’s more powerful: Blogs or the mainstream media?
• Public relations profesional Cathy Yingling says Most consumers don't differentiate between mainstream writers and bloggers
• Robert Fitzpatrick canvasses developments in U.S. law relating to blogger anonmymity and the Wayback Machine
• Bill Richardson heaps praise on Daily Kos and bloggers

- Garry J. Wise, Toronto

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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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Matlow 'Judicial Conduct' Decison Reserved as Hearing Concludes

From the Toronto Star, on the conclusion of an inquiry into the conduct of Ontario Superior Court Justice, Ted Matlow:

The inquiry panel has reserved its decision. It will report its findings to the Canadian Judicial Council, which will then decide whether or not to recommend to the federal justice minister that Matlow be removed. A decision isn't expected before the spring.

- Garry J. Wise, Toronto

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"Divorce Blogs," Free Speech and Harassment

Techdirt's synopsis of a Vermont divorce proceeding fits nicely into our ongoing discussion of hot freedom of expression issues, north and south of the border:

We've been seeing all sorts of lawsuits lately that show how the rise of technologies like the internet have really caused troubles. Most of these laws were written in a time when it was impossible to imagine a day when anyone and everyone could be their own instant publisher.

Take, for example, a divorce case that is suddenly getting a lot of attention, due to legal questions drawn out by the husband's decision to publish a "fictional" account of his marriage on his blog.

The wife asked the divorce court to issue an injunction, which it did, claiming that the site is harassment. However, the husband is fighting it, refusing to take down the content, noting that it's a violation of his free speech rights, especially since the order bars him from posting anything at all about his wife. There are a number of complications on top of that. First of all, there's the question of whether or not you can use an injunction to stop speech, even if it's defamatory. Then there's the question of whether or not the speech really is defamatory (made even more confusing by the guy's claim that the story is fictional). We're going to be seeing more and more of these cases, as it's going to take quite some time before people realize that the internet changes the way many people will think about certain types of laws.

(h/t LexBlog)

The article references a New York Times article from yesterday, Blog Takes Failed Marriage Into Fight Over Free Speech.

Two legal pundits offered views in the Times story:

“It’s a whole new area for the law to contend with,” said Rodney A. Smolla, dean of the law school at Washington and Lee University and a First Amendment scholar. “It’s a byproduct of the digital world meeting the ancient world of romance, and the law is struggling a lot to find the right balance.”

...Erwin Chemerinsky, a law professor at Duke University, said that in the past, courts could not enjoin speech in the context that Judge Devine has and that a defamation suit would have to come first. If the statements were found to be false, Professor Chemerinsky said, damages, not an injunction, would be the typical remedy.

“But increasingly,” he said, “courts are issuing injunctions to stop negative speech. The Supreme Court hasn’t yet ruled as to whether you could have an injunction in a situation like this, or more generally, in a case of defamatory speech.”

The Supreme Court broached a similar subject in 2005, ruling on an appeal from a man who was barred by a California state court from continuing to picket outside the Los Angeles law office of Johnnie L. Cochran Jr. as well as from “orally uttering statements” about Mr. Cochran “in any public forum.” Mr. Cochran had filed a defamation suit against the man, who was represented by Professor Chemerinsky. The court ruled that the order was an overly broad prior restraint on speech, but the case went no further because Mr. Cochran had died months earlier.

- Garry J. Wise, Toronto

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A Matrimonial Home In-Law

In Gains v. Jackman, a judgment released late last month by the Ontario Superior Court of Justice, Paul David-Gains who was involved in matrimonial litigation was awarded a 50% interest of his matrimonial home. While regularly such a judgment would be common procedure in Ontario, this case is unique because the home in which Paul was awarded 50% interest was actually owned by Gloria and Peter Jackman, his ex-wife’s parents.

His ex-wife, Elizabeth, along with her parents explained that the property was purchased by the Jackmans because Paul and Elizabeth failed to qualify for a mortgage. They argued that their intention was that Elizabeth and Paul would be living in the home as tenants.

The Court considered the following evidence:

(1) the closing funds for the house were provided by Paul and Denise;
(2) Mortgage payments on the house were being made weekly by Paul and Elizabeth (and that if they had no interest in the home, they would have elected a monthly mortgage payment, especially in light of their financial circumstance);
(3) Paul was making payments to Elizabeth marked “mortgage payments” not “rental payments”;
(4) When the couple briefly separated in 2002, Elizabeth made a list of her assets and included the home on the asset list; and
(5) Several witnesses, who were friends of the couple, testified that Paul and Elizabeth held themselves out to be owners of the home.

In taking the above into account, the Judge concluded that a constructive trust had been established, and that the property was in fact a matrimonial home as defined in the Family Law Act. Accordingly, in spite of his former-in laws being the registered owners, Paul was entitled to a one half interest in the property.

A full text version of Gains v. Jackman can be found here.

- Annie Noa Kenet, Toronto

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MySpace Subpoenaed in Grand Jury Investigation

The New York Times reports that social networking site MySpace has been subpoenaed in a Federal Grand Jury investigation into whether the conduct of a mother who sent allegedly harassing messages to a 13 year old Missouri girl while posing as a teenage boy constitutes fraud.

The case attracted international attention after the recipient of the harassing messages, Megan Meier, committed suicide. The last MySpace message sent to her before Meier hanged herself was “The world would be a better place without you”.

In Missouri, the case against the mother who was sending messages through MySpace was dropped, “ because current state statutes on harassment did not address Internet communication.”

Vnunet.com reports:

Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who specialises in privacy and free speech issues, suggested that the potential of this case to set legal precedent criminalising online speech is worrying.

"The right to speak freely online is hugely important. Whistle-blowers create pseudonyms," he said.

"So do many people who anonymously report on corporate or government bad practices."

Social networking sites are becoming increasingly central to many legal battlegrounds. In addition to our continuing posts concerning freedom of expression, this case will be an interesting one to follow.

We will continue to keep you posted on developments in this area.

- Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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Free Speech, Mark Steyn and U.S. Anti-Online "Annoyance" Law

A January 15, 2006 UPI article discusses a newly-enacted American law that reportedly goes much farther in controlling "offending" online speech than does any human rights statute in Canada.

This federal U.S. legislation apparently prohibits Internet use that is merely intended to be "annoying:"

Last Thursday President Bush signed into law the Violence Against Women and Department of Justice Reauthorization Act of 2005. Included in the law is a clause that outlaws anonymously using the Internet "with the intent to annoy, abuse, threaten, or harass."

"The law is different from the final versions of the bill in the House and Senate," Opsahl said. "It was a bill addressing a lot of other things, and this part was slipped in."

The chief problem with the law, Opsahl said, was the word 'annoy.' "The word covers a much wider range of speech than threats," Opsahl said. "It goes beyond the cyber-stalking that proponents were worried about."

...First Amendment rights are precisely the reason the law may not stand up, Opsahl said.

"The courts historically have been very protective of the right to speak anonymously," he said. Curtis concurred. "The first time it gets taken out for a spin, it will get shut down legally," he said. Opsahl said that even if the law is not enforced, it may have a chilling effect on speech.

These laws, of course, are extremely well-intentioned. For an example of how online abuse laws may legitimately be applied to halt internet harassment, even in the case of a woman whose public vilification might be seen as justified, by some, see this story regarding ongoing web harassment of a Missouri woman involved in an internet hoax that led to a tragic teen suicide.

As the UPI article notes, however, the federal law could be open to considerably broader interpretation. Concern is stated, in fact, that the law could potentially have a chilling effect on speech.

The opponents of the U.S. legislation utilize arguments quite similar to those now being raised regarding Canadian human rights law.

Canada has been repeatedly assailed in recent weeks by U.S. commentators as lacking adequate protection for freedom of expression as compared to America. These comments have typically emerged in response to pending human rights complaints brought by members of the Canadian Islamic Congress against conservative writer and commentator Mark Steyn and Macleans magazine.

I will restate my genuine belief that each of our nations has much to proud of in the constitutional protections that are afforded to freedom of expression.

Each nation guards free speech jealously, but each also places reasonable limits at the outer fringes of communication, as defined in each country.

When challenges are launched that purport to either extend or limit the envelope of our respective Constitutional protections for free expression, our Courts must ultimately be the arbiters of where lines are to be drawn, and where they are not.

In each of our nations, such judicial deliberations are never taken lightly. Our Courts are worthy of great respect, whether we agree with their decisions or not, for the intelligence, deference to legal precedent and vigourous analysis applied.

The recent, uncritical derision of Canada and our human rights legislation places very little faith in the integrity of Canada's judiciary, and is the refuge of the uninformed and the intellectually lazy.

This concerted protest against human rights commisions is largely a Canadianized version of the US neocon cry against "activist judges."

It should be seen for what it is - a talking point by those who defend Mark Steyn instead of defending Canada and tolerance.

The complaints against Steyn way well be dubious as a matter of law, but let us not confuse who the "good guys" are here.

On a related note, if you're in the mood for a fascinating and fun read, check out the U.S. Supreme Court's June 2007 ruling in Morse v. Frederick, the so-called "Bong Hits for Jesus" case, which is one of the Court's more recent rulings on how and where at least one line is to be drawn in the vigourous debate as to permissible speech in America.

The cross-talk among the Justices is at least as interesting as the outcome of the appeal.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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