Human Rights Tribunal of Ontario

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The Human Rights Tribunal of Ontario is an administrative tribunal in Ontario, Canada that hears and determines applications brought under the Ontario Human Rights Code, the provincial statute that sets out human or civil rights in Ontario prohibiting discrimination on the basis of a number of grounds (such as race, sex or disability) in certain social areas (such as services, housing or employment). (See also Ontario Human Rights Commission).

A person who believes they have been discriminated against contrary to the Ontario Human Rights Code may bring an application to the Tribunal.

Controversial decisions[edit]

2008 Complaint against Maclean's magazine[edit]

In April 2008, the OHRC dismissed a complaint by the Canadian Islamic Congress against Maclean's, but issued a statement denouncing the article.[1] In an interview, Chief Commissioner Barbara Hall stated that "When the media writes, it should exercise great caution that it's not promoting stereotypes that will adversely impact on identifiable groups. I think one needs to be very careful when one speaks in generalities, that in fact one is speaking factually about all the people in a particular group."[2]

The editors of Maclean's denounced Hall and her staff for what they called the "zealous condemnation of their journalism" and stated that "[Hall] cited no evidence, considered no counter-arguments, and appointed herself prosecutor, judge and jury in one fell swoop." Maclean's also accused every human rights commission in the country for "morphing out of their conciliatory roles to become crusaders working to reshape journalistic discourse in Canada." Maclean's wrote that Ms. Hall's press release was "a drive-by smear," and "perhaps the greatest disappointment in this whole saga."[3] Mark Steyn, who wrote the article in Maclean's that the complaint was based on, also sharply criticized Hall and the OHRC, commenting that "Even though they (the OHRC) don't have the guts to hear the case, they might as well find us guilty."[4]

At a meeting of the Canadian Arab Federation on the day after the British Columbia Human Rights Tribunal heard the complaint, Hall served on a panel along with Khurrum Awan, one of the student lawyers who helped file the complaint who testified at the BC Human Rights Tribunal against Maclean's, and Haroon Siddiqui, editor emeritus of the Toronto Star. Hall joked to the audience that she could finally speak freely with her co-panellist Awan about his complaint. Awan praised Hall's condemnation of Maclean's, stating that he had difficulty developing support until Hall called Maclean's Islamophobic, and then "everyone wanted to be our uncle."[5]

In a press conference on October 2, 2008, Tarek Fatah, a founder of the Muslim Canadian Congress, claimed that the Ontario Human Rights Commission (OHRC) had been "infiltrated by Islamists" and that some of its commissioners were closely linked to the Canadian Islamic Congress and the Canadian Arab Federation, both of which, according to Fatah, have "contempt for Canadian values."[6]

Case of Sharon Abbott[edit]

In November 2009, Sharon Abbott, a black female newspaper carrier, was awarded $5,000 by the Human Rights Tribunal of Ontario (HRTO) on the basis that she had been arrested by police in early 2007 only because of her skin colour. Although the HRTO found no evidence that the arresting officer "consciously subscribes to any such (racist) attitudes or belief systems" and that there was "no direct evidence that the complainant's race or colour was a factor in the incident," it nonetheless determined that "the officer's actions were motivated by a deep-seated prejudice" because, as the Tribunal claimed, "a White person in a position of authority has an expectation of docility and compliance" from any non-white person they encounter. The National Post sharply criticized this ruling and questioned how the HRTO reached its conclusion regarding "[the] expectation of docility and compliance that is supposedly rampant in the minds of white people."[7][8][9][10][11]

Shortly after the HRTO ruling, the Toronto Police Service announced that it is considering applying for a judicial review of the decision. Toronto Police spokesman Mark Pugash stated that the HRTO's decision eliminates any possible defence against a racial profiling allegation, arguing that "This should scare anyone who could be on the receiving end of such an allegation because it doesn't seem as though you can defend yourself. In this case they decided the officer engaged in racist behaviour, I can't for the life of me figure out how they got to that conclusion. Most fair-minded people would say if the evidence is there, if the intent is there, then make your finding but in the total absence of evidence or intent, to do it on the basis of something that is unconscious, is very concerning."[8][12]

Case against John Fulton[edit]

In 2006, a transgendered woman (now known as Lisa MacDonald) visited Downtown Health Club for Women in St. Catharines, Ontario and asked owner John Fulton for Membership. MacDonald explained that she was actually a pre-operative Male-to-Female transsexual who was in the process of undergoing as sex-change operation, but for the time being, still possessed male genitalia. Fulton explained his belief that with only one change room and shower room in the club, admitting MacDonald would have meant allowing a man to observe the other patrons—all female—in various stages of undress. Approximately one week later, MacDonald filed a human rights complaint with the Human Rights Tribunal of Ontario (HRTO) alleging discrimination.[13][14]

Fulton, and his lawyer Andrew Roman, argued that the Ontario Human Rights Code specifically permits facilities to serve a single sex on the grounds of public decency, and ordains that such restrictions do not constitute illegal discrimination. They also argued that that admitting the complainant would violate the rights of club members to freedom of association under the Canadian Charter of Rights and Freedoms. Fulton also questioned how he was supposed to distinguish the applicant from a voyeur or an exhibitionist.[13]

Fulton stated that he received calls from his members threatening to quit if MacDonald was allowed to join before the sex-change operation was completed. Fulton also claimed that the OHRC told him he had to let her use the women's facilities but refused to provide him with a clear answer on what his rights and the rights of his female clients were in this situation.[15][16] Fulton also stated he never denied membership to the applicant and that she was welcome to use club once the sex-change operation was completed.[17]

The case was scheduled for good a hearing in late 2009. However, MacDonald then withdrew the complaint without explanation. As a result, Fulton was left with legal bills of roughly $154,000 and argued that he had been wrongly accused of being discriminatory without being given a chance to respond. The Tribunal refused to compensate Fulton for any costs, stating that it lacked the authority to do so.[13] In an interview with the St. Catharines Standard, Fulton stated that "They put me through hell for three years and at the 11th hour, they dropped it. There really was no resolution ... and my costs with this are huge."[18]

In declining to provide award any costs to Fulton, The Human Rights Tribunal of Ontario's Alternate Chair Kaye Joachim wrote that:

  • the HRTO had no authority to award costs;
  • no costs against could be awarded against the complainant there was no evidence that there was any abuse of the complaint process;
  • the complainant had "raised important and novel questions about the scope of the Code and its application to transgendered individuals.";
  • Fulton and his lawyers "may have caused unnecessary legal costs by raising spurious preliminary issues," including constitutional arguments that were later dropped;
  • Fulton party's request that MacDonald produce her entire medical history was, in part, "completely irrelevant to the issues raised in the application.[18]

Fulton's lawyer, Andrew Roman disargeed with Joachim's comments, adding that "I'll be taking steps to deal with that...The way the tribunal is set up now, the complainant is rewarded for taking a risk-free grab at a big bag of money. Roman claimed that at the mediation stage, the "typical payoff" is often around $20,000 and that if a person "can't work out a settlement at mediation, you go to a hearing and have to pay many times that."[18]

Karen Selick, the litigation director for the Canadian Constitution Foundation[19] which supported Mr. Fulton, sharply criticized the Human Rights Tribunal of Ontario (HRTO) and the process by which it handles complaints, writing in the National Post that:

"For complainants, the process is virtually risk-free. It costs them nothing to file a complaint, and the tribunal mediator will help explain the shakedown. If they want some legal help filing their complaint, they can get it gratis, at the taxpayer-funded Human Rights Legal Support Centre. And they never have to risk paying costs, no matter how ill-conceived or unjustified their complaint was. Heads, the complainant wins; tails, the accused loses."[13]

In February 2009, Afroze Edwards, a spokeswoman for the Ontario Human Rights Commission (OHRC) expressed support for the applicant, arguing that:

"The [Ontario Human Rights] code does not distinguish between transsexuals who are at different stages of transition.. I think the important thing to remember there is how they identify themselves; what their sense is, that they are living as a man or living as a woman. Regardless of whether they’re preop or postop, it’s their lived gender that’s important.”[14][20]

Case against Maxcine Telfer[edit]

In October 2009, Human Rights adjudicator Faisal Bhabha (who at the time served as the Vice-chair of the Tribunal), ordered Maxcine Telfer, the operator of Audmax Inc., a settlement service that contracts with the federal government to help immigrant women fit into Canadian society, to pay $36,000 to Seema Saadi for terminating her employment after six weeks. In his judgement of the case, Bhabha ruled that the termination was an act of racism and represented discrimination on "the basis of an intersection of ... race, ancestry, ethnic origin and place of origin." Although Bhabha found that "Nothing in the evidence suggests that the respondents deliberately targeted the applicant for discriminatory enforcement of the microwave policy" he nonetheless decided that Ms. Saadi "was adversely affected by the enforcement of the policy" and was thus entitled to compensation.[21]

Ms. Saadi received free legal assistance and was represented at the hearing by a government-paid lawyer; Ms. Telfer represented herself because she could not afford counsel, and as a respondent, she was not eligible for any legal assistance. Following the tribunal's decision, Ms. Telfer was unable to pay the judgement; consequently, Ms. Saadi's lawyers at the Human Rights Legal Support Centre obtained a “writ of seizure” ordering the sheriff to seize Telfer’s Mississauga home and auction it off to obtain the $36,000 payment.[22]

However, in January 2011, a three-judge panel of the Ontario Superior Court of Justice, in an opinion written by Justice Anne Molloy, struck down adjudicator Bhabha's decision, after concluding that it was “fatally flawed” and “patently unreasonable”, and explaining Bhabha's decisions "are so sparse on the factual underpinnings" that “it is impossible to logically follow the pathway taken by the adjudicator” to arrive at his conclusions. The court ordered another hearing, in front of a different adjudicator, and ordered Ms. Saadi to pay $10,000 for Ms. Telfer’s legal expenses - although the HRTO stated that it will use its own money to pay on Ms. Saadi’s behalf, and will represent her free-of-charge in the new hearing. Once again however, Ms. Telfer will receive no legal assistance from the Government, and will have to pay her own legal expenses at the next hearing.[22][23][24][25][26][27]

Writing in the The Globe and Mail, Margaret Wente cited some the court's specific criticisms of adjudicator Bhabha's ruling, noting that while he "refused to hear key evidence supporting Ms. Telfer's version of events," he had routinely accepted Ms. Saadi's description of events "only on her say-so." Wente also noted that the count's ruling found "no link between the evidence he heard and the conclusions he drew."[28]

Telfer's lawyer for the judicial review, Ted Charney, stated that "The only reason they backed off, is because we got this judicial review and we convinced them to wait until the hearing was over before they tried to seize their house and sell it with the sheriff...This was for an employee who had been with the company less than six weeks.” Charney stated that respondents deserve equal access to justice “particularly in human rights claims where people’s reputations are at stake" and that "adjudicators have to be more careful ... in order to assure they provide a fair hearing — not only to the complainant — but to the person who is the subject of the complaint."[22]

In an editorial, the National Post sharply criticized the tribunal for its conduct in this case, arguing that:

"Those who cry racism (or some other -ism) have their legal fees covered by taxpayers, while defendants must pay their own costs. Commissions do not follow the usual laws of evidence. They give complainants wide latitude to prove their cases -- including sometimes even allowing hearsay evidence -- while hamstringing defendants. Those charged with discrimination are frequently denied the right to face their accusers... hearings often resemble kangaroo courts rather than judicial proceedings, even though their outcomes have the force of law in most provinces....It's an institutionalized bonanza for anyone who carries a grudge against his or her boss or landlord.[29]

The Post added that "the HRTO's staff continually complain of being overwhelmed, and cite their increased workload as evidence of pervasive bigotry in Ontario society. If the Saadi-Telfer case is any indication, the bigotry seems to be mostly imaginary."[29]

Howard Levitt, writing for the Financial Post, also criticized the HRTO, arguing that "the vicechairs making these decisions are mainly drawn from the ranks of advocacy groups and union lawyers" and questioned whether or not "Ontario employers have confidence that they will receive fair hearings from this tribunal?" He also wrote that "All complaints of discrimination, regardless of their lack of merit, qualify for a hearing" and that "The employer is generally extorted to offer a settlement to avoid the greater expense of the hearing. Even if the employer is successful, they cannot recover those costs."[30]

Rex Murphy stated that the court's ruling "struck an awesome blow for decency" and sharply criticized the handling of this case, asking:

Case against Melissa Firth and the Peel Law Association[edit]

In December 2010, the Human Rights Tribunal of Ontario ruled in favour of two black lawyers and a black law student who claimed they had been racially profiled in 2008 when Melissa Firth, a court librarian, asked them for ID in a Peel courthouse lounge (access to which is restricted to lawyers and law students). Each of the three claimants were awarded $2,000 "in monetary compensation for the injury to their feelings, dignity and self-respect." Adjudicator Eric Whist, the vice-chairman of the tribunal that heard the case, found that Firth treated the three men in an “aggressive and demanding manner” and that her decision to question them was “tainted by considerations of their race and colour.” One of the complainants, Selwyn Pieters, stated at the time, that "[W]e know that racism in the criminal justice system, in the legal profession, is endemic."[31][32] In Whist's judgement, Firth had failed to give a convincing reason as to why she asked the plaintiffs to produce identification and that this was sufficient to infer that Firth's actions were in some way motivated by the race or colour of the plaintiffs.[33][34][35]

In February 2012, a three-judge panel, led by Justice Sandra Chapnik, of the Divisional Court of Ontario, overturned the adjudicator Whist's ruling, which the court described as “not rationally supported” or “defensible in fact and law.” The court also found that Whist had ignored evidence that might have exonerated the librarian, Melissa Firth, and the Peel Law Association, operators of the lounge - in particular, that Ms. Firth, who has worked at the library for many years, had asked hundreds of guests to produce identification, the large majority of whom were white.[32] The court stated that adjudicator Whist had “unreasonably determin[ed]" that a prima facie discrimination had been established and "unfairly placed the onus on Firth to refute the discrimination." The court noted that:

The court ruled that in order to establish that discrimination had occurred, "a complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction...It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group.” [36][37]

Firth and the association's lawyer, Mark Freiman, stated that adjudicator Whist's assumption that "a nexus between Firth asking the group for identification and racial discrimination occurring" had been incorrect, and that the court's ruling supported this view. Freiman stated that “The decision reminds us that there are two parties in human rights complaints and that we can’t simply assume there is a nexus...There is a real stigma attached to people who are accused of racial discrimination and this decision ensures people who have a defence are able to use it.” Freiman added that "the courts have a justifiable interest in making sure both parties’ interests are protected."[36]

In addition to overturning the Tribunal's ruling, the Court also ordered the plaintiffs in the case, Selwyn Pieters and Brian Noblem, to pay the Peel Law Association and Melissa Firth, $20,000 in legal costs. The court also pointed out that while Pieters had claimed that he had remained calm during the incident and did not raise his voice, "several witnesses contradicted this assertion.” [33]

Pieters subsequently appealed the decision, with his lawyer claiming that "judicial reviews should only happen when there are exceptional circumstances that warrant intervention" and that "The tribunal has the expertise to deal with these cases and weigh the circumstantial evidence." At the hearing, Freiman responded that "No matter how much deference the Divisional Court had to show to the tribunal, it was still Mr. Pieters and Mr. Noble’s burden to show the connection to race."

Marvin Kurz, who serves as counsel for B'nai B'rith’s League for Human Rights, intervened in support of Firth and the Association. Kurz argued that:

Pieters described Kurz's statements as “total betrayal of victims of discrimination” and claimed that Mr. Kurz was a former director of the Peel Law Association who was acting as "a front" for the association.[38][39]

In June 2013, the Ontario Court of Appeal reinstated the Tribunal's original decision, stating that the adjudicator had "ample basis" for his conclusion that "race and colour were factors" in Firth's behavior towards the applicants. The court rejected the lower court's claim that evidence had been ignored while praising the adjudicator, who "carried out his statutory task of sifting through all the evidence and arriving at a difficult decision." In addition to reinstating the tribunal's $2,000 award, the Court of Appeal also ordered Firth and the Peel Law Association to pay the applicants $30,000 to cover their legal fees.[40][41][42]

Other Controversies[edit]

In a 2007 judgement awarding $20,000 to a black woman who was wrongly accused of shoplifting, Human Rights Tribunal of Ontario Alternate Chair Kaye Joachim wrote that the woman was a victim of racial profiling by police. Joachim wrote that "There is nothing novel in finding that racial profiling is contrary to the Human Rights Code. What is new (in the last two decades) is the mounting evidence that this form of racial discrimination is not the result of isolated acts of individual 'bad apples' but part of a systemic bias in many police forces."[43]

Dave Wilson, president of the Toronto Police Association, called Joachim's statement about racial profiling "disturbing" and that "I'm not denying that it hasn't existed. I think that racial profiling, somewhere out there, probably has occurred but it is absolutely not systemic and it is absolutely unacceptable that people would view this as a given within the policing community." Joachim later noted that the ruling did not pass judgement about whether racially biased police investigations generally occur in Peel Region.[43]

In 2009, Human Rights Tribunal of Ontario Alternate Chair Kaye Joachim wrote in a ruling against Michael Shaw, a white Toronto police officer, that although there was no evidence that Const. Shaw knowingly discriminated against the complainant (who was black), no evidence of intent was needed because whether "consciously or unconsciously," the policeman had offended the complainant by his actions; since the complainant had caused to feel discriminated against, this was sufficient to warrant a ruling against the officer.[44][45][46][47]

Lorne Gunter, writing in the National Post, sharply criticized Joachim, arguing that "Guilt, now, apparently is solely in the mind of the complainant. No one needs to prove you had intent to discriminate, that you had a guilty mind. The minute a rights charge is levelled, it is up to you to establish your innocence." Gunter also wrote that this case was further evidence that "Canada's human-rights commissions are horribly biased--far more biased than the people they accuse of bigotry --and need to be disbanded."[47]

References[edit]

  1. ^ Commission Statement Concerning Issues Raised by Complaints Against Maclean's Magazine. Ontario Human Rights Commission. Last accessed December 17, 2008. [1]
  2. ^ Joseph Brean (April 9, 2008). "Rights body dismisses Maclean's case". National Post. 
  3. ^ Jonathan Kay (April 19, 2008). "A friend of free speech?". National Post. 
  4. ^ Brean, Joseph (April 9, 2008). "Rights body dismisses Maclean's case". National Post. 
  5. ^ Joseph Brean (June 9, 2008). "Muslims told to insist on equal voice in media". National Post. 
  6. ^ Barbara Kay, The Islamist elephant in the room no politicians will acknowledge by Barbara Kay, National Post, October 2, 2008.
  7. ^ From the government, a new racist stereotype, National Post, November 19, 2009.
  8. ^ a b $5,000 award in race-related arrest by Emily Mathieu, Toronto Star, November 18, 2009.
  9. ^ 2009 HRTO 1909, Abbott v. Toronto Police Services Board, T-0406-08, November 9, 2009.
  10. ^ Calling Catholic groups ‘cult-like’ does not amount to discrimination: Ontario Human Rights Tribunal by Jen Gerson, National Post, October 17, 2012.
  11. ^ Bonds: Gendered and Racialized Violence, Strip Searches, Sexual Assault and Abuse of Prosecutorial Power by David M. Tanovich, University of Windsor - Faculty of Law, February 11, 2011. Criminal Reports (6th), Vol. 79, p. 132, 2011. (available for download at Papers.ssrn.com, also available in PDF format here [2].
  12. ^ Cops want probe of tribunal by Don Peat, Sun Media, November 19, 2009.
  13. ^ a b c d The human rights set-up by Karen Selick, National Post, February 22, 2010.
  14. ^ a b Gym owner hit with rights complaint over gender by Anthony Reinhart, Globe and Mail, February 26, 2009.
  15. ^ Club owner going to Rights Tribunal over transsexual case, Canadian Press (reprinted by the Toronto Star), February 25, 2009.
  16. ^ Fitness club owner faces human rights hearing over transsexual, The Canadian Press (reprinted in CanadaEast), February 24th, 2009.
  17. ^ Club owner going to Rights Tribunal over transsexual case, Toronto Star, February 25, 2009.
  18. ^ a b c Human rights outcome angers businessman by Don Fraser, St. Catharines Standard, undated (approx. December 2009) (Article ID# 2169421).
  19. ^ Canadian Constitution Foundation
  20. ^ Raphael Alexander: Ontario Human Rights Commission declares -- if you think you're a woman, you're a woman by Raphael Alexander, National Post, February 27, 2009.
  21. ^ Seema Saadi -and- Audmax Inc. and Maxcine Telfer Adjudicator: Faisal Bhabha, October 7, 2009, File Number: 2008-00392-I, Citation: 2009 HRTO 1627, Indexed as: Saadi v. Audmax.
  22. ^ a b c Superior Court rules Ontario Human Rights Tribunal hearing was unfair by Moira Welsh, Staff Reporter for the Toronto Star, Feb 1, 2011.
  23. ^ Gunter, Lorne (3 February 2011). "Run afoul of the rights police, lose your home". National Post. Retrieved 4 February 2011. 
  24. ^ a b Human rights meets their match: The microwave oven by Rex Murphy, National Post, Saturday, February 5, 2011.
  25. ^ Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 DIVISIONAL COURT FILE NO.: 28/10, DATE: 20110118. Available online at CanLII.
  26. ^ Editorial: Is the workplace microwave a human rights matter? by Glenn Kauth, Law Times News, January 31, 2011.
  27. ^ Employer wins appeal, saves $36,000 by Jeffrey R. Smith, Canadian Employment Law Today, Feb 23, 2011.
  28. ^ The case of the smelly lunch by Margaret Wente, The Globe and Mail.
  29. ^ a b You call this 'human rights'?, editorial, National Post, Monday, Feb. 7, 2011[dead link]
  30. ^ Tribunals lacking balance by Howard Levitt, For Financial Post; Postmedia News (published in the Regina Leader-Post), February 19, 2011.
  31. ^ Lawyer wins racial discrimination case by Amy Dempsey, Toronto Star, December 6, 2010
  32. ^ a b National Post editorial board: Real court tells Human Rights Tribunal who’s boss, National Post, February 15, 2012.
  33. ^ a b Court quashes finding of bias against black lawyers by Tracey Tyler, Toronto Star, February 14, 2012.
  34. ^ Pieters v. Peel Law Association, 2010 HRTO 2411, Adjudicator: Eric Whist, December 3, 2010, 2008-00075-I; TR-0023-09.
  35. ^ Ruling in lawyer's claim of 'racial profiling' overturned by Jeff Gray, The Globe and Mail, February 14, 2012.
  36. ^ a b c Court rules law association did not discriminate by Kendyl Sebesta, Law Times, February 20, 2012.
  37. ^ Discrimination case tough to establish by Michele Mandel, Toronto Sun, December 18, 2012.
  38. ^ a b Dreadlock discrimination real: black lawyer’s human rights appeal told by Sarah Boesveld, National Post, December 18, 2012.
  39. ^ Lawyer’s racial profiling case argued at appeal court by Yamri Taddese, Law Times, December 31, 2012.
  40. ^ Black lawyers win Ontario discrimination appeal by Jeff Gray, Globe and Mail, June 13, 2013.
  41. ^ Appeal court upholds racial discrimination ruling against Peel law librarian by Yamri Taddese, www.canadianlawyermag.com, June 14, 2013.
  42. ^ Appeal court says black lawyers were victims of discrimination by Pam Douglas, Torstar Network (reprinted at Mississauga.com), June 18, 2013.
  43. ^ a b Tribunal rules black woman was victim of racial profiling by Natalie Alcoba, CanWest News Service (reprinted in the Montreal Gazette), May 18, 2007.
  44. ^ Phipps v. Toronto Police Services Board, Court File no. C53665, Ontario Human Rights Commission.
  45. ^ Police fight race ruling by Lesley Ciarula Taylor, Toronto Star, July 24, 2009.
  46. ^ Police condemned for profiling of letter carrier by Lesley Ciarula Taylor, Toronto Star (reprinted at University of Windsor Law School) July 23, 2009.
  47. ^ a b Phony courts, phony racism by Lorne Gunter, National Post, July 31, 2009.

External links[edit]