The Lynch List, 12-May-2010

Onward…

First, the Human Rights Commissions are likely pretty confused right now after it was revealed that the Toronto Police identified a Nazi as a victim of a hate crime. The Canadian Jewish Congress, ideological sisters of the Commissions, gave them some pointers. They issued an ironic statement soon after:

A Nazi can never be a victim but only a victimizer.

That’s along the same lines as “Whites are, by definition, racist.” Pardon me for using HR-ish language, but isn’t that a discriminatory statement? A projection of guilt onto an identifiable group? I sense grounds for a complaint…

More from Steyn.

Second: This is interesting – it may mean very little, but it seems fishy to me. The Ontario Human Rights Tribunal has ruled that any complaint made to the Commission is subject to absolute privilege. To me, that means that the complaint cannot be used as evidence against the complainant in any legal proceeding. Would this give the complainant immunity from malicious prosecution, frivolous litigation, and possibly even cost orders? Maybe a reader familiar with law can help me out with what this means.

Third, at least they’re going about it democratically. MP Bill Siksay opened up second reading on his private member’s bill that would include “gender identity” and “gender expression” in the definition of “identifiable group”. If this bill passes, the entire issue about girls on boy’s soccer team will be moot – gender would be all in the eye of a beholder, according to the Code.

The bill would also amend the Criminal Code, including “gender identity” as a victim group for hate speech. At least MP Sylvie Boucher pointed out the obvious result of such legislation (emphasis mine):

…I just want to point out that if we broaden the definition of “identifiable group” set out in the hate propaganda provisions, that will further infringe on Canadians’ right to free speech.

Fourth, one of the reasons why the Commissions and Tribunals were put in place was apparently to speed up the process that normally takes years in the courts. Scaramouche dug up a case that kinda blows that theory out of the water – it’s been going on for nineteen years.

Fifth: A reasoned response to the unreasonable decision of allowing girls on boys’ teams – but not vice versa.

Sixth, ten months of Human Rights hell will discourage firing employees for just cause – as long as they’re a member of a victim group.

Seventh: The Human Rights Complaint into the taxi system in Toronto is getting underway. The complainant insists that a taxi licence system is discriminatory if a racial-minority person (himself) can’t afford one.

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6 Responses to The Lynch List, 12-May-2010

  1. Kevin says:

    RE “Absolute privilege”

    Absolute privilege is a specific concept in defamation law. It’s a complete defence to any defamation claim that the statements were made on an occasion of absolute privilege. Usually occasions of absolute privilege are defined legal proceedings, but another well-known example is the floor of Parliament (which is why politicians sometimes are asked if they would be willing to repeat controversial comments outside the House.)

    Contrasted with “qualified privilege”–very similar defence, but you can’t rely on qualified privilege if you had a malicious purpose in making the comments. With absolute privilege, your purpose is irrelevant.

    (That case is a Court of Appeal case, by the way, not a Tribunal case.)

  2. Kevin:

    Thank you very much for the clarification. I couldn’t confirm who actually made the ruling, but it appeared to be the OHRT that initially took this position.

    So a Human Rights complaint cannot be used as evidence of malicious intent in, say, a libel case. As far as I know, this protection is not extended to the complainants in other civil cases.

    Is this not the removal of the last real disincentive for frivolous and malicious complaints?

    • Kevin says:

      Sorry, I didn’t see your reply right away. I could probably be a little bit more clear. The concept of absolute privilege is both slightly narrower, and slightly more broad, than what you suggest.

      Narrower: It is only a defence to *defamation* claims (slander and libel), not other kind of claims such as malicious prosecution. Also, it only applies to *statements* made during testimony for such claims. So the *fact* of filing a bunch of frivolous complaints isn’t privileged; but you can’t take any specific statement made during the proceeding and use it as the basis for a defamation case.

      More broad: Absolute privilege applies in all kinds of court proceedings and many administrative proceedings. And it applies to statements by any party testifying, not jsut the complainant.

      • Daniel says:

        I know you are 100 percent correct about absolute privilege. That’s why you should check out this recent decision of the Human Rights Tribunal of Ontario. I actually represented the woman in one of the one of the decisions relied upon by the Tribunal (Carlos v. 1174364 Ontario, 2009 HRTO 311)in support of its finding that the protection of absolute privilege from suit for defamation extends to protect from human rights complaints brought under the Code. That’s right, this “administrative” tribunal actually had the balls to dismiss this complaint on the basis that the complaint was founded upon statements that are protected by absolute privilege. I tell you, I have expected the very worst of the HRTO for a long time, but they still never cease to amaze me. The HRTO adjudicators have got nerve comparable to Saddam Hussein’s regime. May God forgive them. Please, see for yourselves.
        http://www.canlii.org/eliisa/highlight.do?text=absolute+privilege&language=en&searchTitle=Ontario+-+Human+Rights+Tribunal+of+Ontario&path=/en/on/onhrt/doc/2010/2010hrto1078/2010hrto1078.html

  3. […] KEEPING UP WITH JENNY– The Lynch List, 14-May-2010; The Lynch List, 12-May-2010 …. […]

  4. […] Clearing up some of the confusion on the subject of absolute privilege, it’s something that appears to cut both ways at the Tribunal. Normally, absolute privilege […]

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