Thursday, January 26, 2012

Bill 168 Reprisals: What if there isn't a harassment policy?

I've made several posts in the last couple of months about the interpretations of Bill 168 that are starting to flow from the OLRB.  The question:  Now that an employer has to have a policy in place for dealing with reprisals, does the anti-reprisal clause in the Occupational Health and Safety Act cover reprisals suffered as a result of making a harassment complaint?

Here's a brief summary of the cases I've looked at so far:

Conforti v. Investia, September 23 2011 (my commentary here):  Vice-Chair McLean holds that s.50 (the anti-reprisal clause) probably doesn't give the Board jurisdiction to hear matters arising from reprisals for harassment complaints, and only would apply to reprisals for an employee asking an employer to implement a harassment policy pursuant to its obligations.  However, it isn't necessary to decide the point because the facts don't support reprisal allegations anyways.

Harper v. Ludlow, November 18 2011 (my commentary here):  Vice-Chair Serena reviews the reasoning in Conforti and concludes that Vice-Chair McLean was absolutely right, and the Board has no jurisdiction over reprisals for harassment complaints.

Walters v. PPL, January 4 2012 (my commentary here):  Vice-Chair Kelly notes the Conforti and Harper decisions, but declines to address the question of jurisdiction because he doesn't accept that there was reprisal anyways.

I was quite critical of the reasoning in Harper and Conforti, arguing that the amendments that Bill 168 made to the Occupational Health and Safety Act should inform our understanding of what constitutes a healthy and safe work environment, and that harassment should be seen as compromising health and safety.  To apply the strict reading of the amendments as set out in those decisions would be to render the harassment provisions of Bill 168 essentially meaningless - form without substance.  The employer would be obligated to implement a policy, but there would be no requirement for the employer to actually abide by its own policy.  (Indeed, there would be no substantive requirements of the policy itself.  Under that interpretation, an employer would comply with the legal requirements by implementing a policy that encourages harassment and creates a complaint mechanism that involves writing down the complaint on a piece of paper and immediately throwing the paper into the shredder.)

Upon reading Walters, however, I took Vice-Chair Kelly as saying that he doesn't necessarily consider the question closed, and that it is possible that, under the right facts, the Board might yet come to a conclusion which breaks from the reasoning in Conforti.

There are other decisions to look at, as well.

In Murphy v. Carpenters (December 23, 2011), the Respondent was seeking reconsideration of a decision not to dismiss the application for failing to disclose a prima facie case.  The original decision was made after Conforti but before Harper, and dealt with a similar allegation of reprisal.  The Respondent felt that the reasoning in Conforti (which the Respondent felt may not have come to the attention of the Vice-Chair, Caroline Rowan) and Harper should lead to a dismissal of this case.

Vice-Chair Rowan noted that she had reviewed Conforti prior to making the original decision, and so Harper didn't change anything.  She distinguished this case on the facts:  Murphy's allegations are that the employer did not have the required harassment policy and that he "sought management's assistance in dealing with his immediate supervisor's conduct", and that he was fired as a consequence.  After being fired, he contacted the Ministry of Labour, and the employer was subsequently ordered to implement a harassment policy.

Vice-Chair Rowan isn't expressly saying that s.50 does protect employees in positions such as Murphy (provided that he can prove his allegations), but she is clearly saying that it might.

This debate clearly isn't closed.

Other cases on the topic include Stainton v. Springdale Country Manor, in which case Vice-Chair Ian Anderson noted that it is "far from clear" that complaining about harassment is protected by s.50 (referencing Conforti), but he ultimately decided the case on the basis that no actions were alleged of the employer which could have been considered reprisals under the Act anyways.

In three other cases, Vice-Chair Anderson has sought submissions from the parties as to whether or not applications should be dismissed on the basis of the reasoning in Conforti.


The one thing that is very clear is that employers are obligated to implement harassment policies.  Many employers are still not compliant, and it is important that they correct this as soon as possible.  Murphy simply highlights that need:  It's still too early to tell where the law will lie when the dust settles, but Murphy suggests that having a policy at the outset could make a critical difference if an employee comes back alleging reprisal.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The Future of Unions?

The Star ran a story today indicating that the CAW and CEP are trying to figure out ways to rejuvenate the relevance of unions in the 21st century, lest they slowly perish.  They're talking about a re-branding, trying to change their image.

The article notes a perception "that unions are primarily self-interested and outdated".

I think that's a fair criticism, and calls for a very deep change to not only how unions advocate, but what they advocate and why.

Unions are dealing with two major problems in terms of public perception.

Do Unionized Employees Have Unrealistic Expectations?

Firstly, there's some criticism that unions and their members are too greedy, pushing too hard and disrupting production for perks and benefits that non-union workers could never expect.  Is this jealousy?  Maybe.  But it goes beyond that, especially in the present economy - job security is something for which bargaining unit members have always been envied, but even they don't have much of it today.  Layoffs are a reality.  Unemployment is a reality.  It's true that it still isn't easy to fire a bargaining unit member for an unsatisfactory performance, but that's not why most people are losing their jobs these days.  Employers are struggling.  Consumer confidence is down, sales are down, revenues are down, and so many employers simply cannot afford to continue to pay the generous wages bargaining unit members receive.

But a union still presses for gains, wage increases, better benefits, etc., which would force layoffs.  So the most senior among the workforce may be better positioned, assuming the employer doesn't go under entirely, but this compounds the unemployment problem.

Of course, not all employers seeking concessions are in financial difficulty.  There's the Caterpillar lockout, and public sector entities looking to shave their budgets.

A colleague of mine from law school argues that the Caterpillar lockout, with a U.S. corporation in good financial shape buying a Canadian company and demanding massive wage concessions, is a symptom of the corporate greed that motivates the Occupy movement.  Perhaps.  But it's also an illustration of the effects of recession:  With higher unemployment, the value of labour goes down in most sectors.  If you won't do the job for x, I'm sure that I can find somebody who will.  The kneejerk "Be happy you have a job" reaction isn't just coming from the public, but also from employers.  Those who press for wage gains in a recessionary economy are often overvaluing themselves, and this is going to inevitably result in job losses.

If I'm employing one person for $60,000, when there are two qualified people on OW who would happily do the same job for $30,000 each, I think that there's a good argument to be made that the better social good is achieved by getting rid of my existing employee and hiring the other two instead.  Labour protections, however, make it very difficult for unionized employers to do that.  Indeed, only a company in a solid financial position like Caterpillar is able to take a hard stand against the union.  Other companies will

Are Unions Protecting Their Members?

The second problem the unions are facing in their perception is something of an inversion of the first problem:  They are not seen as doing enough to protect their members.  They're happy as long as they're getting their union dues, and the less that they can do to earn their dues, the better.  It's more important to them that they convince the bargaining unit to ratify the collective agreement, rather than making sure that the bargaining unit is getting the best deal possible, because a collective agreement gives them protection against decertification.  I can't tell you how many employees I've seen with serious (and in many cases legitimate) gripes against the employer that the unions decline to address.

But the law holds unions to a very low standard in assessing their duty of fair representation, which means there are very few remedies against the union, and almost all of a bargaining unit member's remedies against the employer lie through the union, which means that if the union doesn't go to bat for the member, the member is essentially out of luck.

In many cases, it can be more of a 'tyranny of the majority' type of thing.  As long as they're maintaining majority support among the bargaining unit members, they're fine, and don't need to worry about a few disgruntled individuals.  But this causes a lot of animosity, though, because it isn't just a failure to pursue the individual's remedies; rather, the existence of the union is actually removing from the individual the remedies he would otherwise have.

And here's a fun point:  The collective agreement displaces the common law implied term that an employee will get reasonable notice of termination.  Accordingly, when layoffs do happen in a union context, unless there are negotiated terms of notice in the collective agreement, a laid off worker has very limited entitlements.  (Note:  A union has very little incentive to negotiate such terms into a collective agreement.  It essentially means that, when there's limited cash to go around, the employer has to pay more to the people leaving the bargaining unit, which leaves less for the people who are still going to be paying union dues and who can vote the union out if they want to.)

How to Reconcile and Address these Criticisms?

While the two criticisms may seem to be essentially opposites - unions aren't pressing hard enough, but they're pressing too hard at the same time? - there is a logical thread running through both.

Unions are, by their very nature, most concerned with those who are and who will continue to be members of the bargaining unit.  Layoffs are unpleasant for unions because it means fewer people paying dues, but pay cuts are more unpleasant for the union because it means an equal number of people to represent with smaller dues.  So if people are getting laid off, the union will usually be okay with that.  Security against layoffs is not high on the agenda for unions themselves.  Bargaining unit growth is not necessarily something that the unions are highly motivated towards, either.

The 'jealousy' phenomenon is actually something that unions want.  They want non-unionized people looking at unionized people and saying "My job's not that different from yours; why are you paid so much more?"  Whereupon someone from the union hands over a business card.

The result is that the union would rather have a prosperous environment for those who remain in bargaining units, to show others just how nice it is to be in a union, despite the fact that others have paid a steep price for that prosperity.

There's no easy answer.  I consider myself a centrist in terms of the "labour" debate.  I recognize that unions have a place, especially in times of economic growth, but I don't believe that they are assisting employees generally as it is, and in fact I think they're compounding the recessionary pressures.  But can a 'rebranding' work?

Maybe.  Unions need to change their purpose.  Traditionally, they've justified themselves as 'raising the bar', pushing hard for benefits for their members, as a way of pushing the envelope on how workers everywhere should be treated, so that everyone gets more from their employers.  (Is it just me, or does this sound a little bit like the capitalist mantra of the trickle-down effect?  A little strange to hear it from labour.)

The Occupy movement seems almost like an extension of the labour movement, but the facts underpinning the Occupy movement one thing extremely clear:

Labour Has Failed.

Yes, that's right.  The point of Labour is a redistribution of wealth from those who own the capital to those who produce the capital.  The growth of the income gap and the shrinking of the middle class was going on long before the current economic crisis - this is just increasing our awareness of the injustice.

So how did this happen?  How did we get into a situation where employees are being laid off or having compensation reduced everywhere around us while executives are still getting bonuses in the hundreds of thousands of dollars or more?

In terms of lobbying power and capital, the Labour movement is on nearly equal footing to Corporate interests.  Perhaps more importantly, the Labour movement in large measure owns the large corporations.  Union-administered pension plans have absolutely massive holdings in equity markets, and unionized employees often have quite significant stock portfolios as well.

So while executive compensation has been increasingly running off the rails, where have the unions been?  Why haven't the unions taken an active hand, as lobbyists and as shareholders, in bringing to bear massive pressure for greater corporate responsibility?  Perhaps it's because the unions regard capitalism and corporatism as being offensive to their labour sensibilities.  They don't want to be involved in corporate governance.  That's the realm of capitalists, about labour supporters are unwelcome.  Therefore, we end up in a situation where anyone sympathetic to the plight of employees quite willingly stays completely out of the running of corporations.  (Consider, then, who is left to run corporations.)

What have unions been up to, in the mean time?  Instead of pressing for greater accountability in corporate governance, what legislative reforms have they achieved?

They've been working almost exclusively on their own regulation, trying to protect and improve the existence of the labour movement itself, through amendments to statutes like the Labour Relations Act.  They got the McGuinty government to bring back "remedial certification", making it easier for them to get new bargaining units in the face of "anti-union animus" by employers.  So employers (including large unionized employers) are paying their executives ridiculous wages at the expense of employees and shareholders (read: employee pension plans), and the unions' biggest concern is that some small mom-and-pop employers are disrespecting unions.

What to do, then?

The labour movement needs to rise above this small-minded thinking, and address realities that they've tried to ignore as a matter of ideology:  They need to get out in front of the Occupy movement in a sustained way, using their clout to demand transparency and accountability from corporate executives.  They need to stop being victims, anti-capitalists living in a capitalist world, trying to achieve measly protections from the evil capitalists, and rise to a different level entirely, facing the "1%" on their own playing field.

They need to make economic prosperity and job growth their priority.  The goal of the labour movement has always been to earn the employees a place at the table, to become a partner in running the workplace; to truly earn that place, unions need to show that they can think bigger.

To get to this point, we need to re-evaluate our view of our entire labour relations model, which is built on a fundamentally adversarial relationship between unions and employers.  When unions start getting involved in proxy circulars, their representational role of employees in that adversarial relationship will be compromised.

We need to start recognizing that the needs of the business are not necessarily at odds with the interests of employees as a whole.  Employees should, by all rights, share in the successes and failures of the business; they are major stakeholders in the business.  There are certainly interests to be balanced between employees and shareholders as groups, but at the end of the day they are on the same side, with similar goals.

More to the point, the collective interests to be balanced between groups and the individual rights of specific employees are not the same thing.  This stands out particularly if you imagine a union that truly is a partner in running a workplace - sometimes, the best interests of the company and the bargaining unit as a whole will mean taking actions which are adverse to specific employees.  An enlightened union will know this, and will therefore be incentivized to bargain away the rights and remedies of these employees, and this creates immense unfairness.

Thus, unions need to change the way the see their role, and we need to change the way that their role is legislated.  Unions should be taking an interest in corporate governance, from a general policy viewpoint, and taking a greater interest in the operational success of the employers whose employees they represent, and to do so they will need to sacrifice the sanctity of the collective agreement as completely displacing the individual contract of employment.

Tuesday, January 24, 2012

The HRTO and the WSIB

I made a couple of entries (here and here) some time ago regarding s.45.1 of the Human Rights Code, being the provision that permits the HRTO to dismiss an Application where it feels that the subject matter has been "appropriately dealt with" in another proceeding.

The question, at its core, is whether or not the HRTO has the power to sit in review of human rights-related decisions of other statutory tribunals.  After all, other Tribunals have the power to interpret the Human Rights Code, so it becomes contentious as to whether or not, after a Tribunal has done so, the HRTO can go in and second-guess its approach to the question.  The Divisional Court found that the HRTO should not second-guess the decisions of other statutory Tribunals with a "public protection mandate".  A slim majority of the Supreme Court, considering a similar issue out of B.C., took a broader approach, suggesting that the Tribunal should be deferential generally.

It is quite common to see somebody apply to the HRTO after being denied WSIB benefits, alleging discrimination on the basis of disability against the WSIB.  These Applications are usually dismissed fairly quickly - the HRTO rightly does not want to become a review body for the WSIB.

But there's a case moving forward, Seberras v. WSIB, in which the Tribunal is closely examining its powers in these cases.

One of the key questions is whether or not the provision of statutory benefits (such as WSIB) is a "service" within the meaning of the Code, such that Code rights against discrimination attach.  The Tribunal answered this question in the affirmative.  Thus, the denial of benefits on discriminatory grounds under the Code will trigger HRTO jurisdiction.

The HRTO notes, too, that it should not become a review body for WSIB - anything that comes from the WSIB that is simply an appeal, simpliciter, will be dismissed for no reasonable prospect of success.

It's not entirely clear what kinds of decisions, then, will be heard by the HRTO, but I would postulate the following:  If the WSIB denies benefits for reasons which are discriminatory, without considering the effects of the Code, then the HRTO will have jurisdiction to hear an Application based on those facts.  On the other hand, if the WSIB actually considers the effects of the Code and concludes that its basis for denying benefits does not violate the Code, that's more likely to put the Application out of the Tribunals' jurisdiction - if a person disagrees with the WSIB's Code analysis, there's an appeal process for it.

Of course, if there isn't a proper Code analysis to be heard at all, that will also be dismissed.  An applicant saying "The WSIB didn't believe that I'm injured" will have a tough time getting before the HRTO.  (This is by contrast to the WSIB refusing to recognize a certain disability, for example.)  If an applicant says "The WSIB didn't believe me because they're racist"...then that's likely to fail too, but for more complicated reasons.

In the Seberras case, the Applicant is challenging provisions of the WSIA itself - i.e. the statute creating the WSIB.  This isn't exactly a constitutional challenge - that would have to go to Court.  But the Code is what we call a "quasi-constitutional" statute, meaning that other statutes will be subject to the Code unless the Legislature expressly exempts them.  So if provisions in the WSIA offend the Code, the Tribunal can hear an Application about the consequences thereof.

Again, the WSIB also has jurisdiction to consider such questions.  This was a matter that the SCC decided not long ago in respect of ODSP:  There was a provision in the ODSPA which essentially declined to recognize alcoholism as a disability, and the legal question became whether the Social Benefits Tribunal (a Tribunal set up to adjudicate disputes under the ODSPA, among others) had the power to interpret the Human Rights Code.  The conclusion?  The answer is yes, unless the legislature expressly says otherwise.  The SBT could have and should have applied the Code and determined that the provisions saying that alcoholics couldn't get benefits...were unenforceable.

So again, it's a similar analysis.  The WSIB has the jurisdiction to interpret and apply the Human Rights Code in matters before it.  If it does so, then it's likely the case that the HRTO will have to dismiss a subsequent application based on s.45.1.  If it does not, then the HRTO may have jurisdiction of human rights-related aspects of the decision.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Monday, January 23, 2012

Olivares v. Canac Kitchens

Justice Lederman recently released his decision in what he calls "yet another in a long list of wrongful dismissal actions...arising from the cessation of Canac's manufacturing operations in 2008."

It's a pretty standard wrongful dismissal case in many respects.  A 48-year-old shipping supervisor with 24 years of service sought pay in lieu of notice.  Some other interesting factors:  The plaintiff started working at Canac immediately after moving to Canada from Chile at age 24, and was able to function there speaking mainly Spanish.  Result:  Limited English skills, limited education, limited Canadian re-employability.

The Canac Kitchens cases seem to generally have fairly generous notice periods, by contrast to other jurisprudence.  Still, at this stage of the game the Canac cases are becoming a jurisprudential force all their own:    The plaintiff in this case was able to point to other generous awards Courts have made to his co-workers, in support of his own claim for significant pay in lieu of notice.  Successfully so:  He was awarded a notice period of 20 months.

There are a couple of curious features to this case, though.

Cancellation of Benefits

It's trite law that an employee is entitled to the full benefits to which they would have been entitled throughout the notice period.  Accordingly, when an employee is terminated without notice, and their health benefits are cancelled, they should get some compensation.

Traditionally, there have been decent employer arguments that the employee should only be compensated for out-of-pocket expenses actually incurred, and that if the employee really wants insurance coverage for significant expenses they should pay for coverage (which then becomes a recoverable out-of-pocket expense).  This argument does seem to ignore the reality that displaced employees are ill-positioned to invest in insurance, and will tend to just avoid health-related expenses they can't afford.  That doesn't mean they haven't suffered any loss.

In Brito v. Canac Kitchens, however, Justice Echlin rejected the argument that failing to purchase replacement benefits was a failure to mitigate, awarding the employee damages in respect of lost LTD coverage.

In this case, Justice Lederman took it a step further towards employee-friendly.  Mr. Olivares had waived dental and medical coverage, instead taking the coverage available through his wife's employment.  In other words, Canac wasn't paying for dental and medical coverage for him.  Nonetheless, Justice Lederman concluded that there was value added in the peace of mind of having those benefits available to be opted into in the event that his wife lost her job, and therefore he awarded damages on the same scale as other employees had received who had relied on those benefits.

Mitigation and Estoppel

It is also trite law that mitigation earnings should be deducted from an award of damages in respect of pay in lieu of notice, at common law, but that the statutory minimum notice and severance payments are not subject to mitigation.

Thus, if I get a job with equal pay the day after being fired, I'm still entitled to my statutory minimum notice and severance if applicable.  But likely nothing beyond that.

In this case, the plaintiff had a statutory notice period of 8 weeks, and statutory severance pay of another 24 weeks.  During his first 32 weeks after being fired, he did some work as a drywaller earning $26,600.  The question becomes whether that is mitigation income which should be deducted from his common law entitlements, or whether the common law analysis of mitigation doesn't even begin until after statutory minimum pay runs its course.

As it turns out, there's conflicting law on the subject...both in Canac Kitchens cases.

In Yanez v. Canac Kitchens in 2004, Justice Echlin deducted an employee's mitigation earnings from his common law entitlements, notwithstanding that part of those earnings were covered by the statutory notice period.  By this logic, Canac should get credit for Olivares' $26,600 earned during the stat notice period.

In Moldovanyi v. Canac Kitchens, on the other hand, Justice Brown held otherwise, relying on a subsequent decision by the Divisional Court.

Quite frankly, I think that Justice Echlin's approach is much easier to reconcile with the first principles of employment law.  Justice Brown's approach requires one to perceive the common law notice period as something that doesn't even begin until the statutory notice period runs out...particularly when we're dealing with statutory severance as well, which cannot be paid via pay continuance, that is a difficult concept to justify.

Nonetheless, Justice Lederman's approach is even more curious.  In the Olivares case, Canac is arguing that Justice Brown was wrong.  Justice Lederman's response:  Why didn't you appeal, then?  He finds that it would be an abuse of process to allow Canac to re-litigate the same issue again.  So they're stuck with Justice Brown's approach.

This is akin to, but not quite, issue estoppel.  In the ordinary course, if you and I have litigated an issue before and received a final decision, that decision is binding and immune to subsequent litigation as between us.  However, as between you and a third party...not so much.  Nothing usually stops you, strictly speaking, from litigating the same question against others, even though you may have lost against me.

Thus, where we're talking about a different employee with different mitigation income, it would be unusual and incorrect to apply the doctrine of issue estoppel, despite it being a similar question of statutory interpretation.

The consequences?  Well, if an organization is stuck with any unfavourable legal conclusion that may be raised by others in subsequent proceedings, we would see much more value added in appeals, and significant difficulty in settling appeals.  Every Court loss a company suffers will go from being an unfavourable persuasive case to a binding precedent.  The same, of course, cannot be said of wins.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Thursday, January 19, 2012

Costa Concordia: The Truth Begins to Emerge

I think we are now just *starting* to get a full a sense of what happened.

From the various reports I have seen, though still all subject to the inherently unreliable nature of media hearsay, Schettino intentionally skirted the coast of Giglio as a 'salute'.  Recent reports indicate that he says that he was navigating by sight, because he had done this same maneouver on multiple previous occasions.  Incidentally, he had come closer to the island on at least one previous occasion.

So there is certainly fault to be apportioned to Schettino.  He certainly shouldn't have been navigating by sight in those waters, hindsight being 20/20, but many analyses suggest that the maneouver itself was inherently reckless, and that is more difficult.  Some reports suggest that previous salutes had been expressly authorized by the cruiseline; regardless, the cruiseline clearly knew of the salutes, and apparently did nothing to curtail them.  Silence gives consent, as they say.  It's hard to hold the employee solely accountable for a practice approved by the employer.

I still wonder why there were no automated alarms with an impending collision.  We have cars that can parallel park themselves; surely we can have proximity sensors on the hulls of cruiseships.

After the collision, Schettino turned the ship around to pull it closer to shore, which is almost certain to have saved lives.  It put the ship firmly in shallow water, meaning that despite capsizing, it never fully sank.  Not to mention being close enough to shore to permit many people (including one couple from Calgary) to forego lifeboats and just swim the distance.  The ship otherwise may or may not have sank before the mass evacuation was complete, but regardless there were survivors rescued as late as two days after the accident.  That doesn't happen with submerged wrecks.  So credit where it's due:  That was a good call.

How about the whole 'abandoning ship' issue?

Okay, so reportedly the captain has claimed that he fell into a lifeboat.  That seems improbable.  Not impossible, given the listing of the ship and the crowding of the passengers, but it still seems a little too convenient.

Still, other reports indicate that "as many as 300 of the 4200 passengers" were still on board when the captain left the ship.  In other words, the evacuation was about 93% complete when he left.

Folks should read the transcript of the conversation between Captain Schettino and the Coast Guard's Captain De Falco.  I've seen a number of reactions to this conversation, being highly critical of Schettino's lack of response and 'resistance' to De Falco, and even a story calling De Falco a "national hero" for ordering Schettino to get back on the ship.

I remain a little more sympathetic to Schettino.  First of all, that transcript is not a conversation.  De Falco was tearing into Schettino from the start, barely letting him say a thing, constantly cutting him off.  So if Schettino's explanations seem incomplete or appear to lack context, that would probably be because De Falco didn't let him explain.  Schettino claimed to be coordinating the rescue efforts from the rescue boats.  Which, to me, makes sense.  De Falco said that he should get back on the listing ship to coordinate from there.  Which seems less practical.  I know that I'd be much more effective in receiving and processing information and directing other personnel accordingly if I'm not trying to keep my balance on a near-vertical floor and simultaneously trying to manage an irate crowd.

And, in context, with the evacuation at least 93% complete and rescue crews on site by sea and air, one kind of has to wonder why De Falco was so intent on tearing Schettino to shreds.  It appears that De Falco was in Livorno (between 150 and 200 km north of wear the accident occurred), and open lines of communication - i.e. a real two-way conversation - between Schettino (who is familiar with the ship, present on the rescue boats, and aware of what's going on at the site) and De Falco (who is commanding the air rescue) might have been helpful.  De Falco's approach to the dialogue (or monologue, as the case may be), though clearly earning him accolades in the public eye, strikes me as being counterproductive in the circumstances.

Wednesday, January 18, 2012

Ontario Court of Appeal Recognizes the Tort of Invasion of Privacy

The Ontario Court of Appeal just released its decision today in Jones v. Tsige, a breach of privacy case.

Jones and Tsige were both employees of the Bank of Montreal, but at different branches, and didn't know each other.  Tsige was cohabiting with Jones' ex-husband.

As is common for bank employees, Jones did her personal banking with BMO.  Tsige, accordingly, had access to her banking information, and accessed said information at least 174 times over a period of four years, for no legitimate purpose whatsoever.  (Tsige claims that she was in a dispute with her partner - Jones' ex-husband - and was looking for proof regarding supposed support payments.)

When Jones found out about it, she complained to BMO, which resulted in a one-week suspension of Tsige.  Jones proceeded to commence an action against Tsige.  Last year the action was dismissed on motion, on the basis that Ontario law does not recognize a common law tort of invasion of privacy.

Today the Court of Appeal reversed that decision, finding that, in fact, there is a tort of invasion of privacy (or intrusion upon seclusion).
[71] The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
The Court goes on to note that the third element makes the tort fairly limited, since only intrusions "into matters such as one's financial or health records, sexual practices and orientation, employment, diary or private correspondence" meet the test.  The Court also leaves open the question of how this right to privacy will be balanced against competing rights of others such as freedom of expression.

Damages become an interesting discussion as well.  Where no pecuniary loss has been suffered, the Court establishes a range of up to $20,000, in the most egregious cases, based on factors such as the "nature, incidence and occasion of the...wrongful act"; the effect on the plaintiff's health, welfare, social, business or financial position; the relationship between the parties; distress, annoyance or embarrassment suffered by the plaintiff; and the conduct of the parties before and afterwards, including apologies or offers of amends.

It is possible that aggravated damages will also be available in certain cases.

Ultimately, the Court of Appeal found that damages of $10,000 were appropriate in this case.

My Thoughts

Assuming that this isn't successfully appealed to the Supreme Court, this may have interested consequences in the employment arena.  It is yet another piece of a fragmented privacy patchwork in Ontario, now, where certain types of breaches of privacy, involving information of very specific natures, will be actionable even where privacy statutes may not apply.  I'm sure that many wrongful dismissal cases will include breach of privacy allegations, and not just because of the limited damages that may be available but also because it will now satisfy the "separate actionable wrong" requirement necessary to claim punitive damages.

In the absence of pecuniary loss, breach of privacy claims which aren't connected to other actions (like wrongful dismissal) will be squarely within the jurisdiction of the Small Claims Court.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Tuesday, January 17, 2012

Stranger than Fiction: Extortion on Moving Day

The word "extortion" is strong language in law.  It's a criminal offence, and not a word that should be thrown around lightly.  So when Deputy Judge Sebastian Winny, in the course of a civil trial, concluded that a moving company's actions amounted to extortion, we're dealing with pretty serious misconduct.

As a bit of a disclaimer, I'm going off what I read about this case on CBC News, and have not had an opportunity to read the decision itself.  So...a grain of salt, right?  (Indeed, the story completely misses that the case was in Small Claims Court...which I only realized because I know that Sebastian Winny is a practicing lawyer and Small Claims Court Deputy Judge.  In fact, he was counsel acting on the Elsegood v. Cambridge Spring case I posted about recently.)

The gist of the story is this:  In 2009, Natasha Mitchell moved.  She was a cash-strapped single mother, but was able to pull together $500 to pay the movers, "Two Small Men with Big Hearts", per their estimate.  The movers loaded the truck, went to the new house, and unloaded into the driveway...then told her that the price had gone up to $890.

That, in and of itself, shouldn't necessarily be a problem.  If there's a non-arbitrary formula for calculating the cost, such as hourly billing, then it's common for initial estimates to have a margin of error.  I prefer to avoid giving estimates for hourly billed work, but when I do, I make it very clear that there are uncertainties involved:  I'll tell them what my hourly rate is, and how many hours I expect a certain task to take, and explain how it may take more or less time depending on certain variables.

So it's not outside the realm of possibility that a moving company might have a legitimate basis for charging over and above the initial estimate.  And whether or not there's a legitimate basis, it should end up being a fight over $390.

But that wasn't everything.  Not only did they tell her that she owed them $890, but she had to pay it now.  She only had $500, and told them so.  So they loaded her belongings back into the truck and drove away.

The franchise owner called her that night to tell her the bill was increased to $1,245.  The next day, it was up to $1,901, and would increase to $2,529 if she didn't pay immediately, escalating as 'storage fees'.  Not an option.  So she lost everything.  She borrowed dishes from friends and family, and rented furniture, which was repossessed when she couldn't make the payments.  She ended up sleeping on the floor for three weeks.

And obviously, she couldn't afford a lawyer.  But, fortunately, she had the sophistication and guts to pursue the matter herself.

I posted earlier today about how self-represented litigants are almost never successful, because the vast majority of their cases are chaff in the court system - matters which never should have gone to trial.  Mitchell's case is the exception.  Deputy Judge Winny awarded her compensation of $22,419, plus interest and costs, noting that the defendants were fortunate that it was not a criminal court.  (Indeed, other moving companies have faced criminal charges for similar conduct.)

The franchise owner has expressed that he disagrees with the judgment and won't pay, insisting that none of this would have happened if she had just paid the original $890.  This may well be true, but it's difficult to go from there to an entitlement to withhold the goods, and even harder to go from an entitlement to charge hundreds of dollars per day for storage.


Here's the trouble with this sort of issue:  The criminality of the conduct in question is relatively marginal, even if the civil aspects may be relatively straightforward.  The ridiculous and arbitrary escalating costs are what make it very clearly wrong, but what would happen if it wasn't escalating?  Are movers entitled to hold the goods until they get paid what they are legitimately owed?  I would lean towards "no", but it isn't necessarily obvious, and the absence of obviousness means that there could be a "colour of right" defence to allegations of theft.  If the movers thought they were entitled to hold the goods, they can't be held to have committed theft.  So I'm not sure that the criminal law is the way to deal with this.

However, those who can afford to pay the extra few hundred for their belongings will, because it's easier to do that than to have to replace everything, and then actually fighting over a few hundred dollars...well, it isn't worth it.  Whereas those who can't afford to pay the extra few hundred will lose their belongings and be unable to afford to enforce their remedies against the movers.

I think we need legislative guidance on the rights and obligations of moving companies.  On their obligations relating to billing and estimates, and what rights or liens they may have in light of a failure and refusal of the customer to pay.  People who repair and/or store goods are often entitled by statute to a lien over the goods pending payment - i.e. if I bring my watch to a jeweller for repairs, and the jeweller fixes it, he's entitled to hold it until I pay his bill.  There is a rigourous process for him to satisfy if he wants to sell it to satisfy the debt, and then he still has to account to me for money exceeding the amount of the debt.  The statutory regime is nice, and clear.  The common law regarding self-help remedies, especially where bailments are concerned, is very muddy.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Self-Represented Litigants

There's an interesting phenomenon which one can easily notice when surveying jurisprudence:  When one side is self-represented, and the other is represented by a lawyer, the side represented by a lawyer is almost always successful.

This is just as true at the Human Rights Tribunal and Small Claims Court - processes designed to be more accessible to self-represented litigants - as at other court levels.  (Indeed, the trend is more easily seen at those levels, because there are many more self-represented litigants.)

Why is this?

I could engage in shameless self-promotion and say that it's because a lawyer's advocacy skills are superior to the self-represented litigant; the lawyer is able to present his client's case in a better light and convince the adjudicator to come down on his side.  To some extent, this is true - the advocacy aspects of law are not to be underestimated.  But it is only a part of the explanation, I think.

I have heard people argue that Courts and Tribunals do not treat self-represented litigants fairly, and do not take them seriously.  I don't really believe this - in terms of process, Courts and Tribunals bend over backwards for self-represented litigants.  And it's far easier for me to believe that a Court is ignoring a self-rep's argument because of the tenuous (or non-existent) merits of the argument itself, rather than an inherent bias towards self-represented litigants.  You might be surprised by how many times I have seen people who represented themselves complain that the judge ignored their incontrovertible proof that they were right...where it does not appear to me that the facts proven have any relevance to the issues in dispute.  If there is an aspect of the system that does not treat self-represented litigants fairly, it is the fact that the legal system itself is so arcane and complicated that it cannot easily be understood by a self-represented litigant.

No, the biggest reason for the discrepancy in the jurisprudence is that a self-represented litigant is less likely than a represented party to be aware of the inherent difficulties of his or her position.  In other words, they will litigate matters that should not be litigated, taking positions which any lawyer would know are unsustainable.

I have been retained to act opposite self-represented litigants on a few occasions.  The truth is that this makes my job harder.  When I am facing a lawyer on the opposite side, we have a common understanding of process and substantive law.  This means that I expect to be able to have a meaningful discussion with the lawyer about settlement, and if we cannot settle the matter, it is usually because the matter is one which reasonably calls for adjudication.  Moreover, it means that I can usually expect the lawyer to follow the proper process, disclosing the necessary documents in a timely manner, etc.  With a self-represented litigant, you never know what you may have to deal with.

On one occasion that particularly stands out, I dealt with a self-rep taking a position which was quite weak, but she did not file or serve any documents in advance of the application hearing.  It was not even clear that she would show up.  Because of the failure to serve documents, she was not technically entitled to even address the Court on the matter, much less to lead any evidence.  The trouble is that, as I noted above, the Courts tend to bend over backwards for self-represented litigants, so there was a risk that she would be allowed to do both.  Being cognizant of the possibility, I had to spend even more time preparing for the hearing than I would have had to if it were a lawyer on the other side.

Lo and behold, she shows up with a sheaf of documents in hand that she wants to rely on.  I was pretty confident in my case, but nonetheless I didn't want to have to deal with documents I had never seen before, so I took a position which I felt I could portray as eminently reasonable:  I won't object to her making submissions, but I will object to her relying on any documents or other evidence not properly before the Court.  The judge agreed.  Not surprisingly, she had to be curbed a couple of times during her submissions when she tried to branch off into unsupported facts.  Not surprisingly, my client was successful.  Equally unsurprisingly, my client got a costs award - it didn't address her costs in full, yet it was still a substantial amount of money for the other party.

The lesson is simple:  Lawyers may be expensive, but they are important.  It isn't just that they'll help you to win your case, or achieve a more favourable settlement, but there is also significant value added in learning that your case is unlikely to be successful.  People are always coming to me for good news.  They always want me to tell them that they're right to do what they hope to do, or that they're going to be successful in their cases.  Fortunately for all of them, I don't bow to that pressure.  I give advice which is realistic and practical.  But, as disappointing as realistic advice may be in some situations, knowing what you can't do is just as important as knowing what you can do in terms of managing risk and reducing liabilities.  And if you're already in litigation, knowing that you will most likely not succeed can be just as valuable as knowing that you likely will.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Monday, January 16, 2012

Has the Costa Concordia's captain been hung out to dry?

I've been following some of the news coverage regarding the Italian cruise ship Costa Concordia which collided with off-shore rocks and keeled over.  The last death count I saw was 6, but I'm not sure if everyone has yet been accounted for.  A tragedy, without a doubt.

And what caused it?  Well, the cruise line has told us exactly whose fault it was, laying the blame solely and directly on the captain.  Apparently, he took the ship off of its designated course without authorization, causing the collision when attempting a "stunt", and then abandoned ship ahead of the rest of his passengers, contrary to the 'sacred duties' of every ship captain.

Something has seemed odd to me about the coverage, and that's that this finger-pointing seems to have begun too quickly.

Even now, it's still just "preliminary investigations" which point to human error in the collision, and the reports of the captain leaving the ship too early seem pretty fluffy, in large part because it doesn't appear to distinguish between what should be two distinct aspects of the operation:  Emergency evacuation, conducted by the ship's officers and crew, getting everyone off the ship who can be evacuated; and search and rescue, conducted from other vessels or from dry land (as dry land was just about a hundred meters away), involving searchers with additional safety equipment trying to access people who may be trapped in submerged compartments of the ship.

In an earlier report, I saw commentary about how the captain's insistence that he waited until everyone was off the ship was obviously untrue, given that survivors were subsequently found and rescued by divers.  Now, there are criticisms that the captain left long before the rescue operation was over.

The coverage I've read paints the picture of careless and non-chalant captain piloting his ship into the rocks then pushing his way through women and children to get to the first lifeboat.  I don't necessarily buy that image, because I know that it's far too early to reach these conclusions.

How was the accident caused?  This will be the subject of weeks (perhaps months) of investigation, and probably a full inquiry in addition to potential criminal proceedings against the captain.  To squarely say "human error" so quickly is impossible - it is, at minimum, an oversimplification - and tells me that the cruiseline is using the captain as a scapegoat, fairly or not.  Perhaps it's even true that the captain took the ship off course, and perhaps also true that the deviation was not for a compelling reason, but even if those are true then there are other questions about why the rock formation was not known or detected.  (The captain says that the rocks weren't on the charts and that the ship's sensors didn't pick them up.  If that's true, then there should have been no reason for the captain to be aware of any danger in his actions.)  Ships cannot and should not be reliant on exact predetermined courses to avoid hazards, as deviations will be necessary in some cases, and should have the necessary charts, equipment, and expertise on board to avoid hazards.

Human error means pulling the ship off its predetermined course without regard for potential hazards.  But a ship's captain presumably should have the skill set to safely plot an alternate course, relying on navigational charts and other safety sensors, and if the crash is caused by a failure of those, then that's less the captain's mistake than it is a lack of appropriate resources and failure of equipment.  I'm not saying that I think the blame falls any particular way; I'm just saying that it's too soon to tell.

When should the captain have left?  And when did he leave?  Reading the commentaries, you would think that the captain is obliged to stay on board the ship until every last man, woman and child is accounted for.  Under these circumstances, that would mean that the captain should still be sitting in the command centre of the listing ship.  Which would be silly.  (Nota bene:  The ship is not sinking.  It listed over and became grounded.  Parts of the ship are submerged, but parts of it - including the superstructure - are not, and do not appear to be in any imminent risk of doing so.  Sitting in the command centre waiting for the evac to be complete would not be a noble sacrifice; it would be a waste of time.)

Yes, when evacuating the passengers and crew, the captain should be coordinating to the end.  But when the passengers stop coming and there are no more to be found in accessible areas of the ship, and when other vessels arrive to render aid or a land-base staging area for rescue operations is established, it is far more practical for search and rescue efforts to be coordinated from elsewhere, rather than conducted by the captain and his crew using resources on the ship.  The captain, with his knowledge of the ship, is going to be far more valuable in the rescue op staging area than in his sideways command centre.  They can send rescue divers, with the equipment and training necessary to conduct the rescues, rather than sending Josh Lucas on a heroic suicide mission into the murky depths to save whomever he can.

When did he leave?  It isn't clear.  Perhaps there were still thousands of people evacuating the ship when the captain boarded his lifeboat.  That would pretty clearly be a problem.  But it's less than clear from any of the reports that this is what happened.

What is clear is that the cruiseline has already decided that it will use the captain as a scapegoat.  That whether or not the captain is at fault, it will try to salvage its reputation by saying that this catastrophe was the fault of one unstable individual and that their cruiseline is safe again because he isn't there.

I don't know the details of Italian law.  They have a very different legal system from us.  In Ontario, I would be very concerned about this kind of scapegoating:  Employers should step out in front of this kind of criticism and defend their employees until - at minimum - the investigation shows wrongdoing.  Don't put the employee out in front of a train until you know that the employee deserves to be there.  I've talked before about the Dangers of Scapegoats.

What we would expect of employers here following such a catastrophe is a series of blanket statements saying that an investigation is ongoing, refusing to allocate or indicate blame until the investigation is complete.  To do otherwise, to accuse an employee of human error causing a deadly accident without being confident about the allegations, would expose an employer to significant liability.

Not to mention that it makes me less confident that appropriate measures will be taken to prevent a future similar accident.  When the company line is "It was all this individual's fault, and our ships are completely safe", then I find myself questioning whether or not there's a missed opportunity to make the ships safer.  Is there nothing that could be changed on the ships themselves to reduce the chances of a subsequent accident?  We expect service providers to overreact to accidents.  When somebody dies, our confidence is shaken in the service, and we want effective preventative measures moving forward, not excuses and finger-pointing.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Friday, January 13, 2012

TTC Driver Eating a Chocolate Bar

I was on the road this morning, reminding myself why I dislike driving in winter, and on 102.1 (the "Edge"), I heard the radio host Josie Dye discussing a story she had read about in the news, involving a TTC driver being investigated for eating a chocolate bar while driving.  You can read about the story in the Toronto Star.

Josie questioned the severity of such an allegation.  The prospect of this employee being suspended or even fired for such an incident seemed absurd to her.  It's a chocolate bar.  She acknowledged the TTC's statement that drivers are prohibited from eating or drinking while operating a bus, but argued that eating a chocolate bar is not necessarily the same as eating a full three-course meal behind the wheel.  (Well, I'm paraphrasing - the point was about the same.)  When one of her callers suggested, albeit not in so many words, that we need a bright line rule about eating, rather than fuzzy contextual analyses, Josie argued the contrary, that context counts for a lot:  We need to use common sense.

Now, I want to step back for a second and say that, on the TTC statements that I'm reading, I see absolutely no evidence for the proposition that this employee has been suspended pending investigation, or that the employee is likely to face suspension or discharge for this misconduct.  The only real facts that appear in the news story are that the employee was accused of eating a chocolate bar; eating breaches TTC policy; and the TTC is investigating.  This all seems quite reasonable to me.  A "no eating or drinking" policy seems to make sense in my mind, and investigating when there's an allegation of a breached policy also makes sense.  I wouldn't advocate a serious penalty for a first offence under the circumstances described, but this all seems legit.

That being said, Josie is absolutely right about the contextual approach.  If a driver was fired for eating a chocolate bar and thereby breaching policy, and it were a first offence (again, we don't know this), then there's little doubt that an arbitrator would reinstate the employee.  It is a relatively minor offence, and even though it is safety-related the actual implications of the conduct are fairly insignificant.  (Heck, there was one case where a police dispatcher was reinstated after being fired for stealing chocolate bars from the workplace concession machine.)  On the other hand, if the conduct complained of posed a serious and imminent risk to the public, or was otherwise unlawful (i.e. talking on a cell phone), then it would be more serious and potentially attract more serious penalties.

Josie went on to note that there may be perfectly reasonable excuses for eating a chocolate bar.  What if the driver was diabetic and needed to keep his blood sugar up?  Or maybe not diabetic, but tired and needing a pick-me-up for safety-related concerns?

I have to disagree with Josie about these, to some extent.  A case involving a diabetic driver would be extremely complicated, partly because she's right - failure by a bus driver to properly manage the condition would be extremely dangerous to the general public.  There's a presumptive obligation to accommodate, that an employer may have to permit a diabetic employee to snack as necessary...however, with the lack of supervision and peer interaction on the job, the significantly safety-sensitive aspects of driving a bus, and potential hazards caused by the necessity of snacking while driving, the TTC would likely have an argument against needing to accommodate.

As for a tired driver needing a pick-me-up...that's not an excuse, in my mind.  An employer such as the TTC has a right to expect its drivers to show up for work bright-eyed and alert, not blurry-eyed and groggy with an extra large coffee in hand.  It comes down to how you take care of yourself, for which we are all personally responsible.  Even as a lawyer, I consider a good night's sleep to be important, to be sharp and doing my best work for my clients the next morning.  Tiredness causes mistakes.  On the road, mistakes can be life-or-death.  So having a chocolate bar because "I stayed up too late last night, so I needed to address my tiredness" is actually more serious in my mind than having one just because "I felt like indulging my sweet tooth."  Now, if I were a TTC driver kept up all night by a colicky newborn or some other factor outside of my control, and got up in the morning feeling unable to safely operate a bus, then I would expect that the appropriate resolution would be to alert my supervisor to the situation before getting behind the wheel, rather than by waiting until I got caught with a coffee or chocolate bar and then trying to justify my conduct retroactively.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Thursday, January 12, 2012

Stranger than Fiction: Invalid Marriages for Same Sex Marriage Tourists?

There's a story in the Globe about a same sex couple from Florida and the U.K. trying to get divorced in Ontario.

Divorce tourism.  That's a new one.  They're actually in a difficult legal quandry:  Their home jurisdictions won't grant them divorces, because they aren't recognized as being married; and we don't want to divorce them because they don't live here and don't fall under our divorce laws.

More specifically, the story is about the position being taken by the Federal government, that despite being married in 2005 in Toronto, where same sex marriage is legal, the marriage was invalid from the start because the two resided in jurisdictions where same sex marriage was not lawful.

So now the Harper government is taking heat for subtly trying to reopen the debate on a 'hidden agenda' item, just like the private members bill, "The Unborn Victims of Crime Act", tried to start down a road to reopening the abortion debate, or reversing the government's practice of seeking clemency for Canadians facing the death penalty abroad tried to adjust Canada's approach to capital punishment.

From the start, I had my doubts as to whether or not this truly was political interference, and thought it may just be the effort of a clever government lawyer trying to resolve the above-noted legal quandry.  But it seemed like the government argument was far-fetched and baseless.

Then I did some research, and found, maybe not so far-fetched.

Formal Validity and Essential Validity

It turns out that there are two aspects of validity to a marriage, as recognized in Canadian law.   There's formal validity, which means the formalities which must be observed in solemnizing the union, and the test for this is "lex loci celebrationis" - i.e. the formalities are governed by the law of the place where the marriage was celebrated.  Thus, Canadian law regards a marriage to be formally valid provided that it met the formal requirements of the jurisdiction in which the wedding took place.

Essential validity is a bit stickier, dealing with the question of whether or not two people have the legal capacity to marry.  This isn't just about same-sex marriage; it's common to prevent close relatives from marrying, and most jurisdictions have minimum ages for marriage.  Some jurisdictions will prevent people from marrying if they don't share a religion or race.  And, as it turns out, the way that Canadian law traditionally treats jurisdictional differences does not favour the gay marriage tourism industry.

The jurisprudence is exceedingly scarce on the point, but there are two tests which can be applied.  The first test is the "dual domicile" test, which provides that a marriage is only essentially valid if it meets the essential validity requirements of both jurisdictions in which the parties lived immediately prior to the marriage.  If this test is applied in the gay marriage context, then only in circumstances where both parties come from places where gay marriage is legal will the marriage be valid.  Which kind of defeats the point of coming to Canada to do it, no?

The second possible test, applied less frequently in the jurisprudence, is the "intended matrimonial home" doctrine, applying the essential validity requirements of the place where the parties intend to live.  If this test holds the day, then gay wedding tourism is still really impossible, but gay wedding immigration could be conceivable.  Still, not particularly helpful.

So under these common law doctrines, the marriage between the couple trying to get divorced...along with all the other couples who flocked to Canada because they could get married here...would be void.  They were never married at all.

Solves the problem about not having a divorce mechanism though, no?

The Civil Marriage Act and the Charter of Rights and Freedoms

Of course, it's never that simple.  The Charter of Rights and Freedoms guarantees freedom from discrimination on the basis of enumerated and analogous grounds, and it has long been held that sexual orientation is an analogous ground.  The Courts began to come down on the side that same sex couples were entitled to marry, under the Charter, and the government decided to run with it, so it enacted the Civil Marriage Act, which codified the right of same-sex couples to marry (while guaranteeing religious officials the right not to perform marriages inconsistent with their own views).

In the Civil Marriage Act, Parliament recognized expressly that the Charter requires same sex couples to have the same rights as heterosexual couples, including access to the institution of marriage.

"4.  For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex."

In light of s.4, it seems slightly odd that the Federal government is now arguing that the marriage in question is void because the spouses are of the same sex.  Now, I could argue that s.4 displaces the common law dual domicile and intended matrimonial home doctrines.  But I wouldn't argue that on its own, because the contrary argument is too easy:  s.4 sets the Canadian standard for essential validity, but does not change the interjurisdictional analysis of essential validity - i.e. it does not prevent the essential validity standards of the U.K. and Florida from being applied in the present case.

No, I think an argument based on s.4 alone is quite weak.  However, read in context of the Act as a whole, and in concert with the Charter jurisprudence, we end up in a very different place.

Unlike the U.S. Bill of Rights, the Canadian Charter is not limited to domestic effect.  It goes without saying that other governments are not subject to the laws of Canada and therefore the Charter doesn't affect them, but the Canadian government continues to be subject to the Charter even in extra-jurisdictional contexts.

Thus, if Canadian investigators go overseas to investigate a crime in another jurisdiction, cooperating with domestic police because of Canadian interests in the crime, our people are still held to a Canadian standard of conduct.  No arbitrary detention, no arbitrary search and seizure, etc., even though these practices may be accepted by the host state.  Why?  Because we regard the Charter as being universal.  We think everybody has these rights, not just Canadians or people on Canadian soil, and therefore we will honour these rights everywhere, even if other nations do not.

So when the Civil Marriage Act says that a marriage can't be voided simply because it's a same sex marriage, as a necessary consequence of Charter considerations, we can't start saying to visiting same sex couples, "This doesn't apply to you because you don't live here".  It's a Charter right, not subject to common law doctrines like the dual domicile rule.

So...if they're married after do they get divorced?

I'm very sympathetic to this couple.  I strongly believe that Canada should and must recognize their marriage.  But the couple goes on to argue that, by extending to them the opportunity to marry, Canada is also obligated to provide a mechanism for divorce.

As sympathetic as I am to them, and without intending to sound callous, my response to that proposition is this:  That wasn't in the brochure.

The divorce quandry was foreseeable from the start.  I'll grant that the possibility of difficulty divorcing probably never occurred to this couple before getting married...or if it did, it probably didn't worry them, for the same reasons that many otherwise rational people don't bother signing 'pre-nups':  They really think marriage is forever, despite what the statistics say.

Canadian divorce law is a fairly complicated structure involving federal and provincial statutes, permitting the courts to deal with child custody and support, equalization of property, and spousal support.  But you can't just come to Canada to get a divorce - there are residency requirements.  So, while it's perfectly fine for a couple to visit Niagara for a weekend and get married, they would have to live here for a year before they could get divorced.  This is the law in Canada.

The bottom line is that Canada never advertised same sex divorces.  We never promised them, expressly or impliedly, and divorce tourism was never a possibility.  We permitted the solemnization of a union which was purported to be is there an implied promise in that of an exit strategy?

Now, if we did present a mechanism for divorce tourism, how would we deal with child custody, support, and equalization issues?  Would people with no real connection to Canada suddenly have the benefit of Ontario law, and be able to use our court resources just because they got married here?  Or would our Courts be put into the unenviable position of interpreting other jurisdictions' matrimonial laws - or worse, of extrapolating what the other jurisdictions' laws would do if same sex marriage were recognized there?  It's completely implausible.  We simply cannot go down that road, granting divorces, splitting up economic units with relationships entirely governed by the laws of another jurisdiction.

I will grant that the quandry presents a very compelling moral argument:  They have nowhere else to go.  It really is a mess.  But that, in and of itself, is not a reason for an Ontario court to take jurisdiction over the matter.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Rosa Parks she is not

This isn't an employment situation, but it's still in the human rights arena and related to other aspects of workplace law.

The Ottawa Citizen published this story about an OC Transpo rider being asked to move to the back of the bus.  Why?  Because she smelled like cigarette smoke, and this made the driver uncomfortable.

The commuter, Ms. Parent, says that she feels that she is being 'discriminated against' because she is a smoker, and thinks that dealing with "lots of different smells" is just part of the job of any person (such as a bus driver) who deals with the public.

That point isn't necessarily wrong.  Smelly foods, often with specific cultural associations, or certain foods which cause people to have certain scents, have interesting human rights dimensions.  Asking somebody to move to the back of the bus because she smells like curry...well, that could be troublesome.  So a driver probably has to cope with such a scent.

But cigarette smoke isn't curry.  As far as I know, there is no jurisprudence to date identifying smoking as being related to any prohibited grounds of discrimination, with the result that there is nothing legally wrong with taking adverse measures against smokers, like asking them to sit at the back of the bus.  (Morally wrong?  I would think not.  We've been marginalizing smokers for years, and the consequence has been a drastic reduction in the number of people who continue or start smoking - very positive for public health.  Indeed, twenty years ago it would have been absurd for somebody to try to avoid the 'smoker' smell, because it was so pervasive.)  If there were a connection between smoking and a prohibited ground of discrimination, then we would have to apply a Human Rights and/or Charter analysis to all sorts of no smoking policies and smoking-related laws.

However, it is not outside the realm of possibility that smoking could be interpreted as falling within the framework of a prohibited ground; alcohol addiction is well-established as a disability, and it is not inconceivable that a similar rationale could be applied to nicotine addiction.  (I would tend to distinguish nicotine addiction, however:  An alcoholic is driven to consume alcohol, which directly impairs one's psychological and cognitive abilities to a significant extent; the same is not true of nicotine.)

On the flip side, however, I'm not sure that any particular entitlement exists for the driver not to be exposed to the smell of smoke.  I'm not aware of any data establishing adverse health effects of smelling people who have smoked (which strikes me as being somewhat different from second-hand smoke), so I doubt there's a health and safety argument to be made.  It's simply a matter of preference (though, as a non-smoker, I must say that I find the preference quite understandable).  So if OC Transpo decided that it did not want smokers forced to the back of the bus, it would probably be entitled to direct the driver not to do so.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Wednesday, January 11, 2012

Bill 168 Reprisals - A Door Still Open?

Last week, the Ontario Labour Relations Board released its decision in Walters v. PPL Aquatic, Fitness and Spa Group Inc., in which Mr. Walters alleged that he was fired as a reprisal for making a complaint of harassment.

I twice posted about this issue in November (links here and here), after similar complaints were dismissed.  In the first one, Conforti, Vice-Chair McLean found that there was no reprisal, but suggested that he did not believe that the OLRB has jurisdiction over such complaints, in any event:  The amendments to the Occupational Health and Safety Act require an employer to implement a harassment policy, but does not actually impose substantive obligations on the employer regarding accepting or dealing with complaints, and therefore a complaint is not protected against reprisals under the Act.

My second post followed the Harper decision, in which Vice-Chair Serena disposed of the case directly on the basis of Vice-Chair McLean's reasoning in Conforti:  The OLRB does not have jurisdiction.

Thus, I concluded that, until and unless the Divisional Court weighs in on this issue, the Board will stand by the decision in Harper.

In Walters, however, Vice-Chair Patrick Kelly implies that the matter may not be completely settled law, and declines to address the question because he finds as a matter of fact that there was no reprisal in the first place.
The Board has recently dealt with workplace harassment complaints under the new statutory provisions.  In the first case, the Board opined in obiter that it has no jurisdiction over an alleged reprisal for having complained of harassment.[1] More recently, the Board, relying upon the obiter from the Investia decision, determined categorically that it lacks that jurisdiction.[2]  In my view, it is unnecessary to decide the issue of jurisdiction in this case.  That is because, on a balance of probabilities, I conclude that PPL did not make any reprisal against Mr. Walters as a result of his having complained about harassment, or for any other unlawful reason.
He proceeds to make several findings of fact, including that Mr. Walters was fired (PPL had taken the position that he had resigned), which may be binding on the parties in subsequent proceedings.

This is all very strange.  The Board says that it does not need to decide whether or not it has jurisdiction, because on the facts the case the application must be dismissed anyways.  Of course, if the Board does not have jurisdiction, then where does its authority to make factual determinations originate?  Perhaps more importantly, McLean's logic in Conforti in large part turned on a floodgates argument, that the Board does not want to have to closely examine the facts in situations where the employee has alleged harassment and - for whatever reason - the relationship has continued to deteriorate afterwards.  Yet, in this case, instead of simply referring to Harper and Conforti and declining jurisdiction, the Board conducts a full assessment of the facts in order to avoid having to reach a conclusion on jurisdiction.

It is not uncommon for an adjudicator, faced with two questions, to look at the easy one first and the hard one only if it's still necessary.  This approach does not necessarily work well in theory where jurisdictional issues are involved, and so its use here definitely suggests that Vice-Chair Kelly regards the jurisdictional issue as a hard question.

So the very interesting question becomes this:  If Vice-Chair Kelly had, in fact, concluded that the dismissal was a reprisal, which way would he have come down on the jurisdictional issue?


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Tuesday, January 10, 2012

Dorriesfield v. Domtar - A good test case for judicial review?

The Human Rights Tribunal of Ontario just released its decision in the Dorriesfield v. Domtar case, dismissing the application because it was not commenced within the mandatory one year period.

The legislation sets up a two-stage test for relief against the one year limitations period:  An application can only proceed if it can be shown that the delay was incurred in good faith, and that no substantial prejudice can be shown.

Ordinarily, administrative tribunals err on the side of hearing the merits of the case.  The HRTO has gone the other way, imposing a very strict standard for relief against the limitations period.  Dozens, perhaps hundreds, of applications have fallen to this problem since the HRTO became able to accept applications directly 3.5 years ago, and it is exceptionally rare that the Tribunal was satisfied that the delay was incurred in good faith.  (The only case I know of is Lutz v. Toronto, in which the Tribunal had a full hearing on the issue and required Mr. Lutz to lead medical evidence and significant viva voce evidence establishing essentially that he was medically unable to file the application sooner.)

There are also cases where the Tribunal raised the matter of its own initiative then backed off because it was not "plain and obvious" that the delay was not incurred in good faith, still leaving the door open to dismiss the application later after more thorough consideration of the issue, and one, Moffatt v. Northampton Group, where the one-year deadline was missed by only 3 days so the Tribunal decided to delay its consideration of the issue until after mediation.

Put simply, the Tribunal has set the bar extraordinarily high for these matters.  Judicial jurisprudence usually suggests that good faith requires that the person had no ulterior motive, and that if the delay was incurred because of ignorance to one's rights, there must have been no reason for the person to make inquiries about his or her rights.  It isn't always clear what the Tribunal is looking for when they find that good faith has not been established, but it is clear that the Tribunal very closely scrutinizes any reason given for delay, and will find any justification not to accept the legitimacy of the reason.

The Case

In Dorriesfield, the application was filed on April 27 2009, in respect of his discharge from employment on June 27 2007, 22 months after the fact.  One of the real exceptional aspects of the case was that it was filed by the Office of the Public Guardian and Trustee on behalf of Mr. Dorriesfield.  The OPGT became Mr. Dorriesfield's guardian on March 26, 2008.  It is estimated that the OPGT probably became aware of Mr. Dorriesfield's termination from employment in April 2008, and they discussed the matter with Dorriesfield's union in July 2008.  In September 2008, the OPGT tried to encourage the union to reopen the matter to grieve the discharge.

The OPGT spent the following months seeking more information about the dismissal and how Dorriesfield's disability may have been a factor in it, communicating with Dorriesfield's doctors and union counsel.  The union declined to pursue the matter any further in February 2009, following which the OPGT began its internal processes to get approval to apply to the HRTO.

The OPGT argued, among other things, that it was still obtaining medical evidence as late as December 2008, and in the mean time they were trying to pursue other avenues of resolving the issue, through asking the union to reopen the grievance and making other requests of the employer, and therefore the delay was incurred in good faith.

The Tribunal found that the "issue of the applicant's termination...was squarely in issue by April 2008."  (The consequences of that are uncertain; after all, depending on when in April this became true, it may well be that the application was filed within a year afterwards.  The Tribunal went on to consider alternatives, finding that, even if it was reasonable for them not to have acted until they became confident that there were still issues to be pursued in September/October, "the Application was not filed for approximately another seven months".)  The Tribunal disposed of the OPGT's argument regarding its obtaining medical evidence by pointing out that "the time lines...are not suspended while a party gathers evidence in support of their claim".  The Tribunal further noted that it "is settled law that pursuing other avenues of redress is not a good explanation for delay."

My Thoughts

I believe that this decision could be open to judicial review by the Divisional Court, for a couple of reasons:

(1)  As distinct from an individual applicant putting together their case in advance of making an application, when the OPGT is gathering medical evidence to substantiate a claim, it is because they don't have the same innate and internal understanding of the individual's disability that the individual must have.  The OPGT cannot be said to have known that there would have been grounds for an application until it reviewed medical evidence in light of knowing the reasons for termination.  The very nature of the OPGT's mandate precludes one from assuming that they will have a fulsome understanding of the issues from an interview with the individual involved, and it is prudent and reasonable to expect them to do their due diligence before assuming that there was a Code breach.

(2)  The Tribunal's treatment of the delay after the OPGT can be said to have been alive to the Code issues is questionable.  What is the relevance of the seven month delay from September/October (if one supposes that this was when it was reasonable for the OPGT to start considering an Application) to the actual filing of the Application?  Why is seven months too long, and what duration would not have been too long?

I pose a thought experiment:  I am dismissed on grounds which are discriminatory, and on my way home I am so distraught that I get into a car accident, and am comatose for 366 days before waking up.  Clearly, if I file an Application the next day, the delay is incurred in good faith.  But if, during my recovery, I move a little bit more slowly to pull together my recollection of the matters in issue, consult legal counsel, and [gasp] try to informally resolve matters with my employer, and don't file the application for several more months, at what point is the delay no longer incurred in good faith?  The Tribunal here seems to be suggesting a test akin to setting aside a default judgment, that you have to move as quickly as you possibly can once the one-year period is up.  But the results of this are not fair, just, reasonable, or good public policy:  It means that, because I was comatose, I am in a much worse position than somebody who had not suffered such a tragedy; I am not in a position to duly deliberate upon my options; I am not in a position to appropriately prioritize other matters; and furthermore I am forced into a position where I must commence litigation in respect of a matter which could quite conceivably be resolved informally without litigation.

The Tribunal seems to use the one-year limitation period as a way of trying to manage their immense case load.  They dismiss what they can at preliminary stages.  Yet if one really looks at the assortment of reasons they use in this case for finding that the delay was not incurred in good faith, they are essentially sending a message to the OPGT that it should have immediately taken steps to commence an application, without (a) satisfying itself that an application had a reasonable prospect of success or (b) attempting to determine whether or not the matter could be otherwise resolved or settled without formal Tribunal proceedings.  If the OPGT and others took this message to heart, the consequence would be the filing of large numbers of frivolous applications and applications which could otherwise have been settled.

A more cogent and reasonable way of approaching the question of whether or not delay is incurred in good faith is by examining the reasons for the delay at any given point in time, and stopping the one-year clock through any period in which a good faith delay is incurred.  Thus, after I wake up from my coma, I have one year.  If my one-year coma was commenced in the tenth month after the Code breach, then perhaps I should only have two months left after waking up and resuming my daily activities.  (Though, if one supposes that I woke up and remained incapable, then after an organization such as the OPGT picked up my affairs from scratch, it's fair to say that their clock shouldn't be started with 10 months elapsed.)

In other words, when the OPGT first became aware of the fundamental facts underlying the application, that should have started the one year clock; not put them on an "asap" schedule without the ability to investigate or negotiate the issues involved.  Understand the distinction I'm drawing:  There's a difference between saying "You shouldn't have missed the 12-month deadline just because you spent the whole year trying to muster your case and negotiate with the respondent" and saying "After missing the 12-month deadline for good reasons, you shouldn't have taken any time to muster your case or negotiate with the respondent."

The narrative of this case involves the OPGT taking reasonable steps forward at every stage, ultimately commencing an application approximately a year after they first became aware of the fact of the termination of employment, approximately seven months after they can be confidently said to have been aware that discrimination was a live issue, approximately four months after they obtained the medical evidence necessary to satisfy themselves that the application could be successful, and approximately two months after they reasonably concluded that an application was necessary.

If there's one thing that absolutely cannot be said to be missing in this timeline, it's "good faith".


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.