The Lynch List, 25-Aug-2011

August 25, 2011

First: The unions get a dose of their own:

Federation officials would not talk Wednesday about the contentious and sensitive case or its cost to members, but union sources revealed the bills surpassed $350,000.

Ken Lewenza, an executive board member and president of the Canadian Auto Workers, said the case turned into a distraction for the federation and wasted funds and valuable staff time.

Hm. Now what would prompt Terry Downey to make a frivolous complaint that would tie up all these resources? I’m not sure, but this might have something to do with it (emphasis mine):

Downey, a former investigator at the Human Rights Commission of Ontario, charged Ryan with workplace discrimination, harassment and reprisals at the federation…

Second: Legal restrictions on the BCHRT simply don’t apply in “egregious” cases, says the Tribunal. Though I don’t argue that the case is egregious, what’s to stop them from throwing off other restrictions in the name of “egregious” complaints?

And though it’s been mentioned before, it bears repeating:

The shuttered company has no funds and a human-rights complaint represents “the only realistic chance of recovery of lost wages over and above those recoverable from the directors of Khaira under the Employment Standards Act,” the tribunal decision says.

So if the complainant was not a racial minority, he would not have this “realistic chance” through the Tribunal to recover his lost wages.

Third: Some interesting commentary on a past case in which the harassment allegations of an executive assistant were dismissed because she participated in and encouraged the inappropriate conduct. Some good questions are asked:

Maintaining a professional environment is important, but people do have feelings. Does being honest with someone about feelings qualify as sexual harassment? Should an employee face sexual harassment accusations for expressing his feelings to a co-worker? If two employees have a personal rapport that sometimes goes outside normal professional boundaries but both are willing participants, at what point does it become harassment, or should it at all?

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The Lynch List, 22-Aug-2011

August 22, 2011

First: Barbara Hall has laid down the gauntlet on the City of North Bay, claiming that unruly university students have every right to mess up the neighborhood that they are renting in.

Furthermore, Hall states the familiar refrain that only certain groups of people – the “vulnerable” – are  worthy of protection and advocacy from the OHRC:

Vulnerable people under the Code include, “newcomers, young people, older persons, people from racialized and Aboriginal communities, single people, people with children, and women.”

I’d like to see where in the Code that the word “vulnerable” is even mentioned. Barb? Anywhere?

Second: The Ontario Human Rights Tribunal has dismissed a case against Barrie Police in which a former officer claimed she had suffered a miscarriage while following orders – nine years ago. The plaintiff complained of the Tribunal:

“It seems hardly human rights-ish of them”

If by “human rights-ish” you mean bending established rules, ignoring guidelines, and dodging precedents which are supposed to safeguard against abuses of the system, I would agree.

Third: There’s no question that a job in the prison system is not an easy one. Whether it is prison guards, policemen, front-line military servicepersons, or professional hockey players, there are attitudes and coping strategies that are employed and entrenched by those who dish out and suffer violence as a part of their daily job. One of the most common behavior is to ridicule differences in others – Kyle’s big ears, Tom’s fat mother, Ed’s quirky religious beliefs, and Mike’s aboriginal heritage.

For former prison guard Mike McKinnon, a Cree, he wanted to end this practice – at least as it relates to aboriginals. He was understandably injured by the insults leveled his way in the 70’s and 80’s, and fought for many years through human rights complaints to impose changes on the prison system. While his efforts are laudable and commendable, and should hopefully yield some positive results, there are some problems to taking a “human rights” approach to this issue, not the least of which is human rights activists dictating policy for one of the most difficult workplaces in the country. In addition, the laundry list of “prohibited discrimination” and its metastasizing and discriminatory list of “vulnerable groups” will lead to an unequal application of any anti-harassment regulations – Mike would be protected, and so would Ed as long as he isn’t a Christian, but the others are simply out of luck.


The Lynch List, 16-Aug-2011

August 16, 2011

First: A BC lawyer argues that employers cannot fire an employee if they receive a driving ban for drunk driving, and instead must accommodate their drinking-problem workers by buying (>$2000) and installing ignition interlock devices:

“Alcoholism is a disability and employers have a duty to reasonably accommodate an employee’s disability,” explained Martin Sheard.

An alcoholic employee will likely win a discrimination complaint if they were fired after receiving a 90-day driving prohibition and the employer chose to terminate the employee rather than install the ignition interlock device.

Second: Ontario’s government has announced that they will undertake a review of the human rights system in that province, without going into much details of what they will examine. Suspiciously timed, considering that an election is less than two months away and their main opponent has made reforming the Tribunal a key plank in his platform. Toronto lawyer Andrew Pinto will conduct the review – an obvious choice, since Pinto is already on record opposing all of Hudak’s proposed changes.

Third: The BCHRT decided to hear a complaint against a Surrey strata council over second-hand smoke. The smoker, coincidentally named Maureen Puffer, has been cleared of any wrongdoing by the Tribunal. But the complaint will proceed against the strata council, over an allegation that it did not do enough to prevent Puffer from smoking.

My question is this: Wasn’t a bylaw violated? If so, let the bylaw process run its course. If not, what’s the problem? But no, we need to have a complaint so that the Tribunal can invent new rights that strata owners can claim against their councils.

Fourth: Discrimination is only okay when the Tribunal does it. Or at least when it approves of it. Scaramouche dug up a list of approved discriminators. Some of them are quite reasonable. Others are not, such as banning white people from particular jobs. Either way, it puts the Tribunal in charge of what is and is not morally acceptable discrimination. So the government can discriminate, but people can’t – isn’t that the exact opposite of what is stated in the Charter? 

Fifth: Poor Ezra. Now they’re naming sewage treatment plants after him.


The Lynch List, 11-Aug-2011

August 11, 2011

First: Air Canada pilots were rebuffed in their complaint that sought to abolish mandatory retirement ages in the airline industry. The CHRT, which lately seems to have developed a knack for quickly dismissing divisive cases, cited a provision in the human rights act that allows federally regulated industries to terminate employees who have reached their normal age of retirement. No attempts to dodge, weave, or redefine the enabling legislation. Refreshing.

Second: A spokesperson for CASHRA compares the effects of hate speech to that of pornography – which is funny, because pornography is legal on the grounds of freedom of expression.

The argument for prohibiting hate extreme speech, is similar to the argument for banning pornography. The circulation of extreme messages against targeted groups leads to a society with greater tolerance for discriminatory action.

Third: A BC father believes that his diabetic son has a right to force everyone else to monitor his glucose levels and give him insulin shots. He wants all schools in the province to be forced to provide training and hire nursing staff in order to meet the needs of diabetic students. He tried to launch his complaint on behalf of all diabetics across the province, but luckily the BCHRT didn’t bite.

Again, accommodating the disabled is a worthy goal. But you cannot point a gun at someone and demand they do it.

Fourth: The irony of someone holding up a sign in Toronto’s Pride Parade that read, “Trans Rights Now”, is that they already have non-discrimination rights. Not by legislation, of course, but by the OHRC’s willy-nilly redefinition of their enabling legislation.


The Lynch List, 08-Aug-2011

August 8, 2011

My apologies for the infrequent summer holiday Lynch Lists; the usual three-a-week schedule will return in September.

First: An ambulance paramedic was removed from his position by the BC Ambulance Services in 2005, since he could no longer detect a pulse due to his disability. Insisting that the BCAS owes him a job despite his limitations, he took his employer to the BC Human Rights Tribunal. In its zeal to squash yet another insolent employer with over $62,000 in penalties, the BCHRT “erred in law“, according to the BC Supreme Court.

The only way that Tribunal decisions can be overturned in most jurusdictions is by judicial review – in which the opinions and the judgment of the Tribunal member are immune to scrutiny. The scope of review is limited to an “error in law”, in which a point of law was incorrectly applied or not applied at all. It’s a very high threshold, which, in the words of the former BCHRT chair, gives Tribunal decisions “more certainty and finality“. The fact is that there is a significant number of BCHRT decisions being overturned on judicial review – which points to the ineptitude (or bias) of Tribunal members.

Second: Great. Just what we need. The CHRC is giving guys like this a persecution complex. Besides being completely ineffective in inhibiting the transmission of their repulsive ideas, the CHRC hate-speech prosecusions only fosters the law is unfairly slanted against them – and therefore destroys any compulsion to abide by it.

Third: An Ontario woman filed a human rights complaint after her twin 10-year-old sons were denied enrolment into a social activism course at the University of Ottawa. The OHRT simply couldn’t dance around the fact that the Code only applies to adults and had to dismiss the complaint – but practically begged for a Charter challenge against this limitation.

Fourth: The Saskatchewan Human Rights Tribunal has now officially been eliminated. The revisions to the Saskatchewan Human Rights Code are here, and came into effect on July 1. I firmly believe this is a positive step from an incrimentalist point of view: significant changes in one jurusdiction will reduce the political capital necessary to make changes in other jurusdictions. I see it as momentum.

Derek From of the CCF doesn’t quite see it that way:

The Government of Saskatchewan seems to be taking a middle-ground position instead of grappling with the issue of the Code’s relation to fundamental Charter rights.

If the Government of Saskatchewan wants to be a real leader in Canada, it should demonstrate that it takes individual freedom seriously and completely eliminate the Code.

Fifth: Shakedown was voted the best political book in the last 25 years. Congrats, Ezra!


The Lynch List, 02-Aug-2011

August 2, 2011

First: Time to take some seniors to the cleaners, OHRT-style.

A housing complex with mostly seniors voted for a rule that excluded children under 2 from the outdoor pool. When a particularly persistent woman was refused access to the pool three times with her 10-month-old, she refused an invitation to ask for a rule change and instead launched a human rights complaint. The columnist wonders at the hubris of the housing board by issuing a notice for meeting on how to deal with a mother who had registered a complaint with the OHRT and is seeking monetary compensation:

That couldn’t poison the atmosphere against the mother, could it?

As if launching a human rights complaint without first bringing the matter to the housing board didn’t already irreversibly poison the atmosphere. The OHRT ruled in the mother’s favour and extracted $10,000 from the pockets of pensioners.

Second: The BC Human Rights Tribunal is the favored venue for opportunists of all stripes – but not all succeed:

Lee, who has a genetic bone disorder, had sought a formal public apology and financial compensation…

[The Tribunal] noted organizers made several unsuccessful attempts to contact Lee for input on the venue and that once her concerns came to light, organizers offered her alternatives and a sincere apology.