The Lynch List, 31-Jan-2011

January 31, 2011

First: Another day, another Tribunal decision overturned by a real court with a scathing rebuttal from a real judge. A Muslim woman was awarded $36,000 for having to endure workplace policies concerning the dress code and policy for using the company microwave. Let’s see what the court had to say about this decision (emphasis mine):

  1. the manner in which the adjudicator dealt with the inability of a key witness for the employer to attend the hearing was a denial of procedural fairness;
  2. the findings with respect to the microwave policy are flawed by legal errors and lack factual findings to support the legal conclusions reached;
  3. the reasons with respect to the dress code policy are inadequate to explain how the policy was discriminatory against Ms. Saadi, either with respect to its content or how it was applied, and fail to address applicable legal issues;
  4. the adjudicator unreasonably refused to permit Ms. Telfer to present a photographic image to explain her objection to Ms. Saadi’s clothing, which interfered with the employer’s ability to present its case;
  5. the findings with respect to the hijab are unsupportable and flawed by legal errors;
  6. the finding that it is discriminatory for a man to be present at a meeting to discuss the style of business dress required of female employees is unsupportable in fact or law;
  7. the conclusion that the termination was discriminatory was dependent upon the other findings of discrimination and is not sustainable on its own;
  8. the conclusion that the termination was discriminatory was heavily dependent upon drawing an adverse inference with respect to the failure of Mr. Barnett to testify for the employer, which was both unreasonable and legally incorrect and which compounded the procedural unfairness in proceeding with the hearing in his absence; and
  9. there is an overall failure to refer to evidence to support critical findings of fact, including findings of credibility that are either conclusory or missing altogether, and the reasons are inadequate to support the conclusions reached or to permit meaningful judicial review.

Second: Some commentary from Mesopotamia West regarding the birth of Canada’s Charter and the flawed Canadian concept of human rights. According to a book about Trudeau, the impetus for his enshrining of the Charter in our constitution was not about preserving individual rights, Rather, it was about disarming individuals to leave them vulnerable to external control by organized groups:

Actually, there are two problems with [Trudeau’s] individual rights concept. The first is an internal contradiction and the second, external.

The internal contradiction is that if you raise individual rights to the ultimate level, as the Charter does, you also have to provide a way for an individual to protect those rights and you have to say those rights include the individual’s property. Individual rights can’t be protected by the state for the same reason prices on individual goods can’t be set by the state (Adam Smith). To defend individual rights you have to allow the individual the right to defend them.

This could be done in Canada in the Charter by including the right to concealed carry of weapons and the right to own property. Neither are in the Charter.

The external contradiction is that when any group in society attacks the individuals in an ‘open society’ around it, that group will succeed. It will succeed because groups acting together have more power than individuals acting separately. The Bolshevik revolution in Russia is a case in point. They were a minority in the revolution, but they were tightly organized.

This is why the Muslim Brotherhood is going to be the likely winner, eventually, in the Egyptian unrest.

Mesopotamia West blames Trudeau’s dangerous vision on his religion, specifically Roman Catholicism, and its alleged tendency to work towards cultural supremacy. What must be pointed out are the religious underpinnings to liberalism and the concepts of human rights to begin with. They were not developed as a secular means to check the power of the king and the Catholic church, but were rather incubated and eventually put into practice by Protestant Christians as an expression of their religion, and not a rebuke to it.

Third: Ezra Levant was hit again for Giacomo Vigna’s legal costs. Criticizing the HRCs is expensive business.

Fourth: There might be a typo in this article, but it appears that an Edmontonian of Egyptian descent is considering a complaint to the Canadian Human Rights Commission, concerning the Egyptian government’s decision to cut off internet in that country. What exactly does he expect the CHRC to do about it? Send Jennifer Lynch to Egypt to preach human rights to Hosni Mubarak? Actually, that doesn’t sound like such a bad idea…

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Barbara Hall: a thought

January 30, 2011

In light of the news that Barbara Hall, it seems, wants to start the Human Rights rhetoric at a young age for Ontario’s school-children, a thought:

By all means, we should indoctrinate our children. I’m all in favor of bludgeoning our younglings with ideology. But perhaps we could start with some of the classical liberal theorists first? The European revolutionaries who kick-started our liberal democracy; their Socialist offspring; the evolution of liberal and conservative thought over the decades and centuries?

It just seems to me that if we’re going to be placing an emphasis on human rights in schools, we should perhaps offer some basic instruction in how the concept of ‘human rights’ came to be in the first place. Start with an education in liberalism, then work from there.

Of course, if Ontario went that route, people might actually start to see how silly some of Barbara Hall’s mandate really is.

Can’t have that.


The Lynch List, 28-Jan-2011

January 28, 2011

First: So a school board in Ontario wants to create a specialized school in which the children of post-secondary educated parents are barred from attending. Paolo Miele intends to launch a human rights complaint against the school board for discrimination on the basis of family status, but the Commission has already prejudged the case:

While Miele plans to challenge a board-specific policy, Pascale Demers, spokeswoman for the Ontario Human Rights Commission, said the school is permitted under the Ontario Human Rights Code.

“The code permits implementing special programs designed to relieve hardship or economic disadvantage or to assist disadvantaged persons to achieve or attempt to achieve equal opportunity, so there’s no clear ground here,” she said.

“Socio-economic status is not a ground under the Ontario Human Rights Code. The party would have to make an argument about why it’s discriminatory under family status.”

Socio-economic status is not a ground under the Code? So how do you justify your policy on rental housing in which you forbid landlords to discriminate on the basis of income?

You can only use income information to confirm the person has enough income to cover the rent. Unless you are providing subsidized housing, it is illegal to apply a rent-to-income ratio such as a 30% cut-off rule.

Let’s see what the OHRC says about my plan to establish a public-funded school in which only the children of college graduates are allowed to attend.

Second: Interestingly, the Manitoba Human Rights Commission denied an application by a woman who was fired for shaving her head, reasoning that she had done it voluntarily. But all is not lost for the complainant:

Scarth said a waitress could file a human rights complaint if her male counterparts were allowed to shave their heads while females were not. Lozinski hinted she may take that route because she believes she wouldn’t have been fired if she were a man.

I wonder if the same reasoning can be used to throw out complaints based on addictions, on religion, on family status, on criminal status, and even on sexual orientation, all of which are believed by many to be voluntary choices. Ah, but it’s only the Commission’s definition of “voluntary” that matters here.

Third: Some see the OHRC’s campaign to mandate “equity and inclusive education” as an attempt to control the thoughts of Ontario’s schoolchildren. While even I won’t go into body-snatching rhetoric, the OHRC certainly knows the weak points in which they can pursue their pet ideological projects – the schools.

Fourth: Gulp. The courts in the Yukon are worse than their Tribunal. It is an incredible story with lots of twists and turns. A man with a long list of criminal convictions was contracted by the government at the behest of his wife – a government employee – and then subsequently fired because other employees complained. His wife was also fired for concealing his criminal record when she recommended him. Both are pursuing human rights complaints, and a re-hearing of the husband’s case was ordered by the court after the Tribunal dismissed the complaint.

Canada – where criminals have all the rights and the victims only get a museum.

Fifth: As I predicted, the Vancouver Sun editorial about breastfeeding in public has gotten the BC human rights apparatus in a tizzy:

Vikki Bell, Registrar at the Human Rights Tribunal, confirmed that women who feel that they have been harassed or inappropriately denied reasonable accommodation to breastfeed their child in public (including stores) can file a complaint under the sex discrimination part of the Human Rights Code.

[…]

Interestingly, the Attorney General’s Human Rights in British Columbia, Sexual Discrimination and Harassment that describes what kind of discrimination is illegal also says the law “protects people against discrimination in printed publications.” (Have you read the Human Rights Act, Vancouver Sun?)

To this I will echo my continual rebuke to the rights-gestapo – just because you have a right to do it (breastfeed in public without any attempt at modesty, using furniture being advertised for sale) doesn’t make it polite – and doesn’t make criminals out of those who object.


The Lynch List, 26-Jan-2011

January 26, 2011

First: While it would be irresponsible to draw a causal connection, it is interesting to note what might happen should Human Rights Commissions remove the rights of landlords to know about their tenant’s past criminal history:

A man at the centre of a murder-suicide in Dartmouth last week kicked, punched and threatened his girlfriend during a December 2000 robbery that netted him $80 and a two-year prison sentence.

It wasn’t the first prison time for violence doled out to Patrick Lee McGrath, who committed suicide either Thursday or Friday after killing another tenant at the Dartmouth Non-Profit Housing Society’s six-unit building at 7 Galaxy Ave.

His violent past didn’t keep him from getting a subsidized apartment because the society doesn’t do criminal background checks on prospective tenants.

“We don’t ask that question,” Bruce Hetherington, the society’s volunteer chairman of the board, said Monday.

In a telephone interview in which he cited conversations his staff had had with the Residential Tenancies Board earlier in the day, Hetherington said the Residential Tenancies Act allows them to ask potential tenants if they have a criminal record, but the society chooses not to do so in order to avoid discriminating against people who do have a record.

“Even drinking and driving is (worth) a criminal record, and then we would be picking and choosing,” Hetherington said. “We’re not allowed to. It becomes a Canadian Human Rights Commission (issue).”

Hetherington is wrong on two counts – the CHRC doesn’t govern landlord-tenant relations, the provincial commission does. And the Nova Scotia Human Rights Act does allow citizens to discriminate on the basis of criminal record. However, many provinces forbid criminal record checks (BC and Ontario in employment) and opportunistic politicans are ready to add more grounds of discrimination for a few votes. In addition, human rights commissions and tribunals are under a mandate to read their legislation as liberally as possible, which entitles them to expand definitions beyond the realm of common sense. In order to avoid any sort of complaint, landlords and employers often feel compelled to go far beyond the Code, imperiling the safety of their tenants and employees.

Second: A PEI teacher has filed a human rights complaint, alleging that racism, and not his criminal charges for assault (which were overturned on acquittal), led to his firing.

Third: A human rights complaint that alleged differential treatment of a Catholic family by hospital staff was dismissed, thank goodness. But the specter of discrimination that this complaint raises is quite real – that as religion is becoming more and more reviled and discarded by both the public and the state, the sensitivities of religious persons who spend their last days in a hospital or other public facility will be taken into account less and less. Better to start saving for private palliative care…

Fourth: Roy Green on freedom of expression, and Jennifer Lynch’s reaction to it…


The Lynch List, 24-Jan-2011

January 24, 2011

First: You know that the human rights system has problems when those with discrimination grievances bypass them in favour of the court system – because it’s faster.

Rather than wait years for the human rights commission to process the complaint, New Directions is going to court, Qually said. The agency and its clients can’t afford to wait, she said.

This complaint is about a municipality that won’t allow a non-profit agency to open a group home for disabled persons on residential-zoned rural property. The bylaw, which restricts dwellings in this zone to “single housekeeping units”, is discriminatory against disabled individuals that require live-in care aids who need their own suites, says the agency.

Second: So your employee with performance problems has a heated argument with his supervisor. As their boss, you summon both of them to a meeting to iron things out. The employee is a no-show, and doesn’t show up to work for weeks. According to the BCHRT, you are required to assume that the absence is due to mental disability, and cannot fire him until you learn the truth. $15,000 later

Third: The Alberta HRT got its hands slapped by the courts – again. This time, it was concerning the broadest possible definition of “employer” that the HRT used to find Syncrude liable in a drug-testing complaint:

The Court of Appeal held that co-employment is possible under the Alberta Human Rights, Citizenship and Multiculturalism Act and articulated factors for assessing whether co-employment exists, but held that the Panel erred in finding Syncrude was a co-employer. It appears that Syncrude’s relationship with its general contractor and the various subcontractors on its site was nothing out of the ordinary.

Fourth: Okay, maybe it’s an American version, but here’s a great example of what Human Rights Commissions inevitably turn into – public funding for political activists:

During its July meeting, the commission voted to draft a letter of denouncement against Israel for its attack [on the Gaza flotilla] at the request of Mariah Leung, a local member of the pro-Palestinian group Al-Nakba Awareness Project.

The commission also voted that once the letter was finished, it should be forwarded to the City Council; it also asked the council to write its own letter of denouncement.

While the statement has yet to be drafted, the vote to move forward with a statement proved enough to outrage local constituents.

Fifth: The root cause of the societal problems that manifest in Human Rights Commissions and their ilk is debatable. In my opinion, the strongest explanation is grounded in a shift of societal norms towards group responsibility (positive rights) and away from personal responsibility (negative rights). The National Post has a great series going, “Death of Personal Responsibility”, in which Kevin Libin scribes the first chapter:

It’s reasonable to blame a hyper-litigious legal profession and the judges and juries who go along with outlandish lawsuits, without stopping to consider the pernicious effect on broader society of penalizing reasonable risk taking — like installing playground slides, selling hot coffee or a fish hook without warning labels. It would also be unfair not to consider the tendency of politicians to pander to the aggrieved with populist promises of protection. Both of those, however, are products of a more fundamental shift in society, Mr. Howard believes: the rights revolution of the 1960s and ’70s, both in the United States and Canada, where it culminated in the passing of the Charter.

“People confused rights, which were defensive rights, the rights of freedom that we were brought up with, like government can’t take your property away without due process, can’t tell you what to say, and all that. Those are rights.” Today, people see their rights not just as these negative rights, but believe that they are entitled, also, to positive rights: say, the alleged right to listen to a radio station and not be offended by a misunderstood lyric — instead of just tuning to a different frequency. “When you talk about having the right to get something, that’s just power. That’s power over other people,” Mr. Howard says.


The Lynch List, 21-Jan-2011

January 21, 2011

Not much news, but plenty of commentary in today’s List:

First: Hoo, boy. A brave columnist in the Vancouver Sun takes on the right-to-breastfeed-in-everyone-else’s-face crowd:

So what’s wrong with putting a receiving blanket over the baby and your boob if you want to breastfeed in a store? What’s the big deal about going back to your car, turning on the heat and feeding the baby while the toddlers listen to Raffiin the back seat? Why would you think it’s appropriate, much less your right, to slurp and burp a baby on a chair that a retailer is trying to sell and someone else might want to buy sans spittle?

Got a good Human Rights lawyer, Shelley Frilac? The opportunists already have shovels in hand, and they’re dig, dig, digging for gold

Second: Ah, yes. The Human Rights System is the perfect cudgel for the thin-skinned armchair censors to have their way with the media. A recent humour column in the Toronto Sun about Julian Fantino’s appointment to the federal seniors’ portfolio went something like this:

But Minister of Little Old Ladies and Geezers? I nearly burst my truss when I heard.

True, Fantino, 68, fits the demographic, but aren’t old people all soft and cuddly and smelling like pie-crusts?

Fantino’s crustiness has zilch to do with apples or lemon meringue.

I’d ask my friends over at Zoomer magazine what they think of his new posting, except I hate to disrupt nap-time.

Another GTA MP, Peter Kent, as the new environment minister, will deal with climate change, while Fantino is in charge of hormonal change, such as menopause and Viagra.

Cue the perpetually aggrieved:

As the Editor I expect you to ensure that the retraction and apology is printed. If this is not done within a reasonable period and I am not notified of when and where this retraction is printed my next action will be to lodge a complaint with the Canadian Human Rights Commission.

Third: An all-party parliamentary committee has recommended the creation of a Ministry of Human Rights. You might be forgiven for confusing this position with the “Resident Stooge of the United Nations”. The suggested responsibilities of the ministry include “the domestic implementation of Canada’s human rights obligations, [and] for monitoring of Canada’s human rights record and reporting these findings to the appropriate UN body.”

This arises out of accusations – from Cuba and Iran – that Canada has been “allowing deep levels of inequality to take hold”. Like, you mean, by refraining from foisting communism on an unwilling populace?

Fourth: Free-speechers will be interested to read this thorough run-down of the controversy over the OISE at U of T approving the anti-Semitic rants of Jenny Peto as a master’s thesis – and her claim that her freedom of speech and academic freedom are being violated.


The Lynch List, 19-Jan-2011

January 19, 2011

First: An Ontario woman has launched a human rights complaint against her municipality, alleging that she has a right to be a “pushy woman”:

A Hanmer woman has taken the city to the Ontario Human Rights Commission over the hiring practices at Greater Sudbury Transit.

Charlene Bradley says she has been denied a job as a bus driver with the city for nearly two years, despite being ideally qualified and excelling in the battery of tests required of applicants.

The complainant outlines her guess on the reasons for not being hired:

Bradley said she consistently sensed ill will from a male manager with whom she dealt. An admittedly persistent woman, she wonders if she didn’t get under his skin.

“Honestly, I don’t think this guy wanted to hire a pushy woman,” she said. “It seemed like the more I pushed, the further back into the recruitment pool I fell.”

The city stated that half of the requirement for the position is a pleasant, customer-friendly demeanor. I guess that job requirement discriminates against “pushy” women.

Second: The CHRT has begun hearings into the case of the diabetic denied an Afghanistan posting with CIDA. Lawyers for the Justice Department argued that the guidelines by which the complainant was denied the posting were put in place to minimize the risk.

According to complainant Bronwyn Cruden, those guidelines are based on “myths” about diabetes. I wonder if her hypoglycemic attack in Kanadahar was a “myth”.

Third: James Morton of Osgoode Hall Law School disputes the reasoning of the Saskatchewan Court of Appeal decision concerning the marriage commissioners.

If the majority suggests freedom of religion is proper, if kept secret, the minority goes further and suggests freedom of religion is fine so long as it is restricted to philosophical beliefs that do not impact on personal behaviour. There is freedom of belief so long as that belief is locked away in the believer’s secret heart.

There is an obvious danger to religion in either the majority or minority decision. If freedom of religion must be secret, if freedom of religion doesn’t include practice, there’s no freedom of religion at all.

It’s always refreshing to see something in the Toronto Star in defence of freedom, though you can tell that the paper’s editors aren’t onside with the column when you note that they included the disclaimer at the bottom (Haroon Siddiqui’s columns are not subject to such clarification, btw).

Fourth: The kirpan debate is the gift that keeps on giving. As long as you are an HRC employee and want to keep your job, that is. It won’t be long before the Quebec human rights apparatus swings into high gear over kirpan-wearing Sikhs being denied entrance into Quebec’s National Assembly.

Fifth: In a case I wrote about before, a British couple who refused to rent their guesthouses to unmarried couples has now been fined 3600 pounds for denying accommodation to two gay men. The complainants, who are homosexual activists, first threatened the guesthouse with legal action before booking a room under false “Mr. and Mrs.” names. It’s quite likely that Les and Susan Molnar, whose case is before the BCHRT, will face a similar verdict and punishment.