The Lynch List, 30-Jul-2010

July 30, 2010

Here’s your Friday dose:

First: This one just in from the BCHRT: A seafood worker has had his human rights complaint into his termination refused. Mr. Friesen complained that he was terminated because he wouldn’t stop preaching his Christian religion to his co-workers. While it is clear to me from the facts presented that Mr. Friesen should have been fired, the Tribunal has set some startling precedents.

Chief of these is a seemingly blanket permission for any employer to forbid their employees to speak about their religion in the workplace. This is seen by the Tribunal as a bona fide job requirement, since it is rationally connected to “maintaining a mutually respectful, functioning work force at the plant”.

I wonder if the Tribunal would have the same opinion on the “Don’t ask, don’t tell” policy for gays in the American military.

Second: Jesse Ferreras reports on a human rights case brewing in Pemberton:

A former Pemberton councillor and mayoral candidate is taking the Village back before the B.C. Human Rights Tribunal.

David MacKenzie again alleges that the village and its fire chief, Russell Mack, discriminated against him in four separate instances because of his sexual orientation.

Third: Looks like universities have taken evasive-language courses from the Commission (emphasis mine):

The Student Awards and Financial Aid (SAFA) office states that scholarships don’t discriminate; it is an equal access opportunity open to all students. Manager for undergraduate awards, Brenda Denomme… agrees that giving students equal opportunities to apply for scholarships is beneficial both for the university and students.

Only for specific reasons can we target a specific group,” she said. An example of this is giving more opportunities to women who apply for scholarships for the faculties of engineering or science in order to solve the underrepresentation of this gender in these career paths.

Interestingly, despite the SAFA office’s claim that scholarships provide an equal opportunity open to all students, the University of Waterloo does offer scholarships that seem to imply a preference for specific groups, such as Aboriginal or francophone students. The Ontario International Education Opportunity Scholarship Program (OIEOS), for instance, states on its application that “preference will be given to students with disabilities, and to Aboriginal and francophone students who self-identify.” The UW full-time bursary/award application asks “Are you an Aboriginal Person? (voluntary declaration).”

Fourth: The human rights bureaucracy doesn’t seem to be any less nutty stateside. The Minnesota Department of Human Rights has declared “Ladies Night” to be illegal. (h/t BCF)


The Lynch List, 28-Jul-2010

July 28, 2010

As summer nears its height, the Lynch List churns on…

First: Our very own Walker Morrow gets published in the National Post‘s Full Comment section. He discusses the changes at the BCHRT, wondering if there’s a welcome endgame to the provincial government’s actions:

It also sounds like a narrower focus might be in the works from on high. Perhaps it will place a greater emphasis on labor disputes at the expense of other, arguably more important issues like the plight of lesbian women in comedy bars across the province.

Could it be? Could the BCHRT’s reign of soft terror on freedom of speech in this province finally be coming to a close? Could the BC government have finally realized what an out-of-control body they’ve had running loose in their backyard for years? Could they finally be reining this body in?

Second: The feminists are up in arms about some of the moves afoot to reform the Human Rights Tribunals. One of their beefs is that they want the federal Commission to once again spend taxpayer dollars giving legal representation to complainants before the Tribunal. They argue that the Tribunal proceedings are not necessarily a tiff between two parties, but rather a means by which complainants can force their vision of society onto the public:

“…human rights complaints will be viewed increasingly as strictly private, that is as claims that are devoid of any public policy dimension. This is contrary to the view that is embedded in Canadian human rights jurisprudence: namely, that a human rights proceeding cannot be equated with a lis between parties in a court, because the ultimate goal is the promotion of human rights for the benefit of the community as a whole.”

I’d like to ask why the Commissions and Tribunals focus on confidential mediation if the purpose of the Tribunal is the benefit of the community as a whole rather than deciding between two private parties.

Third: Russ Campbell dredges up Lynch’s do-over of Moon’s report to Parliament to remind us that the Commission wants to remove the “truth” defence in the criminal code. Under the heading, “Removing the Truth Defence”, Lynch advises parliament:

Under the Criminal Code, the offence of hate propaganda includes a defence of truth. Professor Moon recommends the removal of this defence on the basis that a hate message suggesting that a given race, sex or religion is devoid of any redeeming qualities as human beings can never be true and therefore the justice system should not give hate-mongers a platform to make this argument in a criminal trial…

As this issue has resurfaced since the original drafting of the legislation, Parliament may wish to include considerations about the defence of truth in its deliberations.

From Russ:

In other words, to protect certain groups considered worthy, it is prepared to destroy the fundamental human right of free speech as it applies to individuals. How progressive of them!

Fourth: Do you think that the bare-knuckle realm of politics could resist enlisting the extraordinary powers of the Tribunal for very long? Nope.

Fifth: John Carpay in the Calgary Herald: Speaking Out is Better than Prosecuting

Rather than government prosecutions of “extreme” speech (can anyone define “extreme” objectively?), the better way to a more tolerant and respectful society lies in counter-speech. Telling someone — firmly but politely — that his speech is unacceptable will actually strengthen civil society. Admittedly this is difficult to carry out; much easier to file a complaint with a human rights commission and trigger a government prosecution. But counter-speech and direct feedback keep people connected with each other, and strengthen civil society. Taxpayer-funded prosecutions do just the opposite.


The Lynch List, 26-Jul-2010

July 26, 2010

Aren’t Mondays great?

First: Sarah Dobson takes a look at cost awards in the HRTs:

But if human rights tribunals have the authority to award legal fees to successful complainants,
employers “will be subject to potentially crippling cost awards in addition to other damages which may, in many cases, far exceed the costs of wrongful dismissal and other court actions,” said Weiler. “That may
encourage more complainants to a hearing…”

Sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial
legislation in a broad, inclusive manner should leave employers concerned, according to Daniel Lublin, a
partner at the employment law firm Whitten & Lublin in Toronto.

The rulings are very employee-favourable, he said, citing a case involving hairdresser Jessica Maciel
who was fired after one day of work but was awarded $25,000 for lost wages, benefits and punitive
damages by the Ontario Human Rights Tribunal because she was terminated for being pregnant.

“They’re trying to send a message in Ontario by doing jackpot awards,” he said. “There is certainly a
push on the tribunal’s part to make big awards where discrimination is found, as a preventative measure.”

The award had little or no relationship to Maciel’s actual losses, he said, and there’s a bit of
Americanization going on, with crazy and outrageous awards.

“The broad panoply of potential damage awards for human rights violations considerably increases the
scope and unpredictability of human rights litigation before provincial tribunals,” said Lublin in a web post.

Second: BCF found someone who at least flipped through the OHRC annual report: a Toronto Sun reporter, who found a couple cases involving niqabs to be curious.

Third: Opposition parties in Newfoundland want their Human Rights Commission to be an independent arm of their Assembly, rather than reporting to the justice minister. Just what we need – a longer leash for the Commissions.

Fourth: Ezra comments on the “I have a right to be an RCMP officer” case

Fifth: The Public Eye reports that Bernd Walter, formerly of the National Review Board, will chair the BC Human Rights Tribunal for an interim period, six months.

Sixth: University Student Unions are now pretending to be their own Human Rights Commissions, demanding that the police cooperate with an investigation that the Algoma Student Union is launching into the arrest of two of their students.

The police, to their credit, told them to bugger off.


The Lynch List, 23-Jul-2010

July 23, 2010

Your Friday List coming right up:

First: Guess who’s been popping by this site? (thanks BCF) Good afternoon, CHRC investigators!

Second: The language of the grievance-hucksters is getting even more humorous. Now, residents of subsidized housing are there only because we’ve forced them to live there (emphasis mine):

Borutski says she hopes the hearing will “finally garner enough public attention and dialogue to provide protection for non-smoking seniors and persons with disabilities forced to live in subsidized housing.”

Funny. I’ve never seen any padlocks on the doors, barbed-wire fences, or armed guards patrolling outside.  At any rate, this complaint certainly involves two competing rights that are currently at the vanguard of BCHRT policymaking – the right to smoke vs the right to breathe. Interesting times.

Third: So the Human Rights Codes were intended to be remedial, right? A municipality named in a complaint is making efforts to rectify some of the issues brought up by the complainant, and wants a hearing deferred so that they can review the contentious policies and consult with stakeholders, including the OHRC and the complainant. But this isn’t good enough for the Dream Team, who launched the complaint. They want the Tribunal to step in immediately and force the municipality to meet their demands. The next time I hear the word “remedial”, I’m going to lose my lunch.

Fourth: All right, I can’t always disagree with Barbara Hall. She’s quite correct when she says that the costs incurred by disabled political candidates as a result of their disability should be exempted from their expense limits. However, I don’t think that the taxpayer should have to pay for extra services for every disabled person who fancies running for office. What do you think?

Fifth: Scaramouche goes through the OHRC’s annual report…

Sixth: The OHRC wants the long-form census to remain (scroll down) – it’s a little more difficult to invent group grievances without cost-free data that handily categorizes everyone into their respective groups, isn’t it?


The Lynch List, 21-Jul-2010

July 21, 2010

Here’s your latest update:

First: The Federal Court of Appeal refused to overturn the case of the failed Iranian RCMP police recruit: “You can’t yell at me, I’m a visible minority”. Upon his return to training, do you honestly think that Mr. Tahmourpour will be evaluated fairly with respect to his peers, knowing that the Human Rights Tribunal will be watching closely?

Second: The OHRC’s annual report is out. Basically, it is a back-patting exercise on how the OHRC has been able to twist the arms of various organizations, including the OPP, and single-handedly create a housing shortage by developing and implementing draconian housing policies.

Third: The Human Right to Take a Shower: 5 women in a facility that employs 1,350 are complaining that their locker room doesn’t have a shower – while the men’s locker room does. I guess that’s good enough for a Human Rights complaint.

Fourth: Another good parsing of the Christian Horizons decision. First, the court rebukes the Tribunal:

[First,] the Tribunal read the exemption section narrowly and in such a way as to limit it only to religious projects that served adherents of the particular religion. If a religious project served others who were not members of the religion, even its “guiding minds” could not be required to be religious according to the Tribunal.

Second, and in relation to this holding, the Tribunal had accepted a “public/private” distinction by which religious employers (and other “special employers” by implication) would be held by a different standard with respect to religious activity when they entered “the public.” Both of these findings were of great concern to many religious groups and organizations.

The Divisional Court had little difficulty finding these holdings by the Tribunal to be incorrect and said that this sort of interpretation would be, in fact, an “absurd” result given the important work that religious projects do for those who are not members of their own religion.

But what did the court leave open? A lot of work for lawyers, it seems:

So where does this leave religious employers? The answer is not clear. At the very least an organization will have to show that it has made a searching inquiry of all the job duties of each position in a religious organization to determine whether any conduct and lifestyle restrictions are objectively related to the job duties in question. Religious employers in future will have to be even more careful to explain in documents setting out job duties and explaining the nature of the organization and how from the religious perspective every job relates to the “religious mission” of the organization.


The Lynch List, 19-Jul-2010

July 19, 2010

Not too much going on in the ‘roos…

First: Looks like “balance of probabilities” has struck again, and a district manager is out $6500 for alleged sexual harassment. While it looks like another classic “he said she said” upon which the Tribunal gleefully took sides with the complainant, I’ll wait for the decision is posted before commenting further on this one.

Second: Dismiss a complaint? Why would the BCHRT ever do that when it brings in more work for Tribunal members? Every company should have to seek permission from the BCHRT in order to hire or fire someone…

Third: The OHRC will be releasing its 2009-2010 annual report tomorrow. Anybody have enough time to muddy through all the obfuscation and self-aggrandizement?


The Lynch List, 16-Jul-2010

July 16, 2010

Here’s your Lynch List. On a Friday. In summer.

First: A shakeup is happening at the BC Human Rights Tribunal, whines the Straight. Heather McNaughton is losing her post as the chair (thank goodness). In addition, member Judith Parrack will not be re-appointed. Parrack, of course, formerly worked for the BC Public Interest Advocacy Centre, a left-wing anti-poverty advocacy group. Two down, still a few activists to go… (h/t Jesse Ferreras, also noted by BCF)

It looks like this is putting some cases on hold, too. Judith Parrack adjourned all future hearings for a case she is currently overseeing, laying thinly veiled blame on the provincial government.

Second: Yet another reason why confidential mediated settlements in Human Rights cases are an affront to the rule of law. We will never know why Mr. Mahmood was not allowed to board an Air Canada flight. We will never know what the human rights law expects of travelers and airline companies. Mr. Mahmood is laughing all the way to the bank, while Air Canada is simply happy to have the Human Rights Commission off its back.

Yet Mahmood insists that Air Canada must provide more transparency. Can we start with some transparency on the amount of money Mahmood was paid to drop his complaint? Can we get some transparency on how the Human Rights Tribunal pressed Air Canada for a settlement?

Third: Here’s Human Rights reasoning for you. If you’re young, male, black, and driving a nice vehicle, the police shouldn’t be able to stop you.

Fourth: While I don’t agree with the course this guy is taking, we all know it was doomed from the start. Trying to use the Tribunal to force the government to provide men equal preventative treatments for cancer as women enjoy simply won’t work. Not that the Tribunal doesn’t think it has the power to demand provincial and federal governments around  – oh, they love doing that, all right.  No, it’s that a cause such as this doesn’t fit in with the Tribunal’s narrative. Case closed.

Fifth: Hmm, how much will this cost Canada’s retailers? Businesses are now being forced to install card-readers that are completely accessible by disabled people. I wonder how long the cord has to be? Wouldn’t that be a strangling hazard for children? Why not demand Brialle on the keypad and voice-activated terminals?