The Lynch List, 18-Jun-2012

First: The Canadian Human Rights Tribunal has found out that it’s not exactly easy to abide by all the demands for accessibility that it routinely imposes on Canadian businesses and government agencies. Its own website has been out of commission for the past six months because it doesn’t have the resources to make it accessible to the visually impaired. Unfortunately, this means that the Tribunal has merrily been going about its business infringing the rights of Canadians without having to make its decisions public. Otherwise I might have taken the chance to revel in a rare bit of schadenfreude

Second: I am genuinely surprised that the federal government didn’t head this very scenario off at the pass when it rightly extended the Canadian Human Rights act to persons and entities governed under the Indian Act. I say “rightly”  a bit tongue-in-cheek – even bad laws should still be applied to everyone equally, especially one under the ruse of “human rights” since to do otherwise implies that some are more “human” than others.

Nevertheless, many human rights complaints have focused on what was before a constitutional certainty – that the federal government has jurisdiction over on-reserve services. The argument goes that if provincial governments provide human-rightsish services such as child welfare and education, then it would be discrimination for the federal government to provide inferior services. It highlights that our constitution is prima facie discriminatory in that it defines some Canadians as “status” and others “non-status”. But alas, our discriminatory constitution cannot be overruled by quasi-constitutional statutes like the human rights codes.

Let me give you an example. Say every provincial government was forced to re-jig their funding formulae for a range of services to match what the federal government supplied via the Indian Act. That would clearly be an unconstitutional violation of the separation of powers between the federal and provincial government. So why is it any less constitutional for provincial governments to dictate the on-reserve funding formulae that is within the jurisdiction of the federal government?

The answer is simple, and acting Commissioner David Langtry has on many occasions made it clear. The Human Rights Act, regardless of its original intentions, is now being used to impose a substantial enlargement of the welfare state and bypass Parliament in the process.

Third: Dear Mr. Rudner: You claim that “the law does not extend any more protection to [persons who are member of a protected group] than it does to anyone else.” While that may be technically true in a legal sense, the reality is much different. A complainant’s membership in any “protected group” that has historically, in the eyes of the Tribunal, been the victim of discrimination, automatically shifts the onus of proof onto the employer. While there are cases in which the employer is ultimately vindicated, Commissions and Tribunals have been clear that they want to see the legal defences of discrimination interpreted as narrowly as possible. This, in practice, presents a significant barrier to the exercise of an employer’s rights in the workplace when it comes to persons who belong to such groups.

UPDATE: Though the original article seems to have been taken down, Mr. Rudner did respond:

Thanks for your comment. I do appreciate the fact that employers are sometimes put in the position where they have to effectively prove a negative – that they did not discriminate based on prohibited grounds. I have worked with many clients facing such circumstances. However, the case referenced in the original post and many others demonstrate that where no factual nexus exists between the decision (for example, dismissal) and the protected ground, no breach of the legislation will be found.
Stuart

Fourth: Reverse onus? Mr. Alan Shanoff at the Law Times seems to have read my mind!

But both [Constable Shaw and the Peel Law Association librarian] were fulfilling what they reasonably saw as their responsibilities and I’m not prepared to accept that either is a racist or guilty of a violation of our Human Rights Code. I refuse to employ a reverse onus and am willing to provide the benefit of the doubt before labelling someone a racist.

Fifth: William Watson at the Post dismantles the “pay equity” nonsense.

In a free market for work, some people may well agree to wages others wouldn’t. But if one group’s wages are held down artificially or systematically or even systemically, so that their pay is significantly less than their economic value, that provides a wonderful profit opportunity for business. Hiring more underpaid workers means making more money, which most businesses presumably want to do. Moreover, workers themselves can profit by moving to the higher-paid jobs, assuming their unions will let them. As businesses hire more and more of the “exploited” workers and as workers themselves move to unexploited occupations, wages will rise where they were “too low” and fall where they were “too high.”

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