Wednesday, December 26, 2012

C55734 Pieters and Noble v. Peel Law Association

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on December 26, 2012

On December 18 and 19, 2012, a Court of Appeal panel in Ontario heard arguments in the appeal of C55734 Pieters and Noble v. Peel Law Association. Brian Noble and I was ably represented by experienced human rights lawyer Geri Sanson.

Thirteen lawyers put in appearance in the appeal on behalf of various parties. It appeared to me that most of the arguments and concerns centered on the legal concept of deference to the first level finder of facts as well as the test for discrimination.

The courtroom was packed with interested observers of the case.

It was also covered by the National Post "Dreadlock discrimination real: black lawyer’s human rights appeal told" November 19, 2012, Toronto Sun "Discrimination case tough to establish", Michele Mandel ,Toronto Sun, November 19, 2012 and Law Times, Lawyer’s racial profiling case argued at appeal court, by Yamri Taddese, December 31, 2012.

Peel Law Association v. Pieters, 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.)

Noble v. Peel Law Association, 2010HRTO 2411, [2010] O.H.R.T.D. No. 2398 (HRTO)

_______________________________________________________________



Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in racial discrimination / harassment / profiling cases in the Federal and Provincial Courts  and the Human Rights Tribunal of Ontario. Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. His current cases include the competing rights case of Taylor-Baptistev. Ontario Public Service Employees Union, 2012 HRTO 1393 that is at the reconsideration stage at the HRTO; Roachet al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act. Selwyn is also acting as co-counsel for the families of three deceased persons killed during a civil demonstration in Linden, Guyana.

Thursday, December 13, 2012

Lawyers Appeal of Racial Profiling Judicial Review Decision to be heard by the Ontario Court of Appeal: C55734 Pieters and Noble v. Peel Law Association

For Immediate Release

December 13, 2012

Lawyers Appeal of Racial Profiling Judicial Review Decision to be heard by the Ontario Court of Appeal: C55734 Pieters and Noble v. Peel Law Association

Date: Tuesday December 18, 2012

Time: 10:30 a.m.

Place: Courtroom One, Osgoode Hall, 130 Queen Street West, Toronto

On May 16, 2008, Lawyers Selwyn Pieters and Brian Noble attended with other lawyers representing the Ontario Human Rights Commission, Peel Regional Police and Dufferin Peel Catholic District School Board at the Ontario Court of Justice at the Brampton Courthouse to argue a production motion in F. (K.) v. Peel Regional Police Services Board (2008), 2008 CarswellOnt 5041, 2008 ONCJ 382, a racial profiling case involving Peel Police and the School Board. During the break in proceedings all of the parties entered the Peel Law Association Lounge to await recall by the Applications Judge.

Ms. Melissa Firth, who is a librarian/administrator with the Peel Law Association, approached Mr. Pieters, Mr. Noble and Mr. Paul Walrond (Pieters student) demanding that they identify themselves in the Brampton Courthouse’s Lawyer’s Lounge. Mr. Pieters and Mr. Walrond are Black men who have their hair in the dreadlocked hairstyle. All were dressed in business suits but not gowned as gowning is not required in the Ontario Court of Justice.



The policy of the lounge and library is only lawyers and law students are permitted to use the facilities, paralegals and members of the public are not. There were a number of other individuals in the lounge who had been unknown to the librarian at the time, including two white women (the lawyer and a Human Resources Manager from Peel Police), a racialized man who self-identified as South Asian (lawyer for the Human Rights Commission). These individuals were neither questioned nor asked to produce their identification. [1] The incident was unnecessary and humiliating. The Law Association and Ms. Firth were accused of racial profiling.

 The Human Rights Tribunal of Ontario found that Pieters and Noble rights to be free from racial discrimination were violated under the Human Rights Code in that their race and colour were factors which led to Ms. Firth’s decision to question them and affected the manner in which she questioned and interacted with them. It ordered the Peel Law Association to pay compensation of $2000.00 respectively. The Divisional Court overturned that decision ordering Pieters and Noble to pay $20,000.00 in legal costs to the Peel Law Association and Ms. Firth.

Whilst racial profiling against African Canadians, Aboriginals and other racial minorities in the provision of goods, services and facilities is widespread and pervasive, there is a dearth of racial profiling litigation in Canada.

This case is one of the first racial profiling cases that does not involved the police or other law enforcement agents or officials to be heard by the Court of Appeal.

This is a case where due to the Applicants’ status as human rights litigators they were able to identify, name, challenge and litigate racial profiling in the context of their positions as lawyers being treated differently based on race and colour.

The Court of Appeal decision in this case will be very important to the emerging jurisprudence on racial profiling from which lawyers and other Black professional are not immuned: “The legal profession has made no concerted effort to rid itself of the racism inherent in the practice.  As the evidence in this case illustrates, racialized lawyers continue to face barriers not experienced by their colleagues.” Benchers Clayton Ruby and Constance Backhouse writing in the recent Law Society of Upper Canada, Appeal Panel decision of Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 3.
 
There are four intervenors arguing in this case:
 
Ontario Human Rights Commission,
Just Society
South Asian Law Association and
B'Nai Brith Canada

For more information, please contact:

Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public
416    601   6806
 
- 30 -
 Resources:

Pieters v. Peel Law Association, 2010 HRTO 2411 (CanLII)2010-12-03
Human Rights Tribunal of Ontario — Ontario
lounge — personal — identification — library — racially profiled

Peel Law Association v. Pieters, 2012 ONSC 1048 (CanLII)2012-02-13
Divisional Court — Ontario
lounge — prima facie case of discrimination — library — complainants — differential treatment

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in racial discrimination / harassment / profiling cases in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario. Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post(2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. His current cases include the competing rights case of Taylor-Baptistev. Ontario Public Service Employees Union, 2012 HRTO 1393 that is at the reconsideration stage at the HRTO; Roachet al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act. Selwyn is also acting as co-counsel for the families of three deceased persons killed during a civil demonstration in Linden, Guyana.

[1] Pieters had attended that lounge numerous times prior to 2008 including while acting as counsel in high profile cases such as the manslaughter and  criminal negligence causing death case of R. v. Cox and Klass 2005 CarswellOnt 6313 (Ont. CJ.) and the firearms case of R. v. Egonu 2007 CarswellOnt 5700 (SCJ).

Thursday, November 15, 2012

Toronto Police Services Board and The Chief of Police Denied Access to Black People at a Meeting to Discuss Racial Profiling and Carding of Black Men

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on November 14, 2012
 
As a litigator who is involved in issues of racial profiling in criminal matters, civil matters and human rights applications, naturally I have an interest in the Toronto Police Service and how its policies in this area that touches on the fundamental rights of citizens in this City are shaped.
 
I attended the Toronto Police Services Board meeting on November 14, 2012, to be met by a wall of police officers who denied total access to persons interested in attending that meeting, most of whom were Black people. The claim the the meeting room was full was proven to be false by Televisions reports that showed empty seats. As well, it is the normal practice to stream the meeting into an overflow room.
 
The Chair of the Police Services Board Alok Mukerjee and the Chief of Police William Blair are responsible for this disrespectful treatment.
 
Lets see who were outside: John Sewell, a former mayor could not get in. African Canadian Legal Clinic Lawyer Roger Love could not get.
 
I could not get into police headquarters to attend this public meeting. Here I am being blocked along with Tidy Francis and Steven Mayers. 
 
 
Three Black Deputants could not get in. To add injury to insult one was stopped, carded and denied access. The female Sargeant even recorded his personal information on her cellular telephone - a total violation of what a public meeting is supposedly about open access and possibly a violation of the man's privacy.
 
 
In fact even the media was prevented from entering the meeting, it took a lot of time and effort for the Canadian Broadcasting Corporation to gain entry to that public meeting. The Toronto Star also reported on the lock out of citizens who were there to make deputations.
 
The Toronto Police Services Board and the Toronto Police Service may do well to listen to the voices of the people in this city, once total public trust is lost it is hard to be regain and many countries are experiencing that phenomena with unfortunate results at all levels.
 
I wrote an email to the Chair and the Chief of Police that follows:
 
From: Selwyn Pieters
To: Alok.Mukherjee@tpsb.ca, William.Blair@torontopolice.on.ca
Cc: "Pieters, Selwyn"
Date: Wed, 14 Nov 2012 22:30:02 -0500
Subject: Racially insensitive conduct at Toronto Police Headquarters - November 14, 2012
Good evening,

It was interesting that as a public board with a meeting that was supposedly opened to the public and discussing an issue of importance to BLACK PEOPLE, i.e. racial profiling and carding of our young people, we were denied entry by armed police officers. Please advise whether as Chair of the Police Services Board together with the Chief of Police you directed your officers to deny entry to Black people at this meeting? Even speakers with deputations were denied admission at least until 2:30 p.m. when I left the premises at 40 College Street. A Picture is enclosed with the police officers blocking my entry and that of others the doors to police headquarters.

One of the Deputants a young Black male was forced to produce his id to a female Sargeant, picture enclosed. I as well, as an "Officer of the Court" vouched for his identity, as well as others to no avail. In order words, he was stopped, carded, and denied access. He was one of many who had deputations to make and were turned away.

The unwelcome conduct today at 40 College Street spoke volumes and no words needed to be spoken.

You need to take ownership for this an apologize.

Public meetings such be such and the impediment placed today on lawful access to a meeting that is ordinarily public is unacceptable.

Yours truly,

Selwyn A. Pieters
 
The Chief of Police explanation that could be found by viewing the Rogers Cable television network recording of that public meeting, unfortunately, did not accord with what took place outside the doors at police headquarters and some explanation is required for the discrepancy.
 
This is the state of affairs in the City of Toronto. Racial harassment and racial profiling is now the norm for our youth. In a speech to youth workers from the federal, municipal, provincial levels of government and private sector on November 08, 2012, I advised them of the important role they play in combatting racial profiling.
 
The widespread practice of racial profiling by the Toronto police was documented in a series of articles published in early February 2010 in the Toronto Star. Those articles may be found at http://www.thestar.com/racematters. Star reporters analyzed police data recorded from 1.5 million contact cards or field information reports on 1.1 million individuals stopped and carded by Toronto police between 2003 and 2008.  The data is from what police call `208 cards’ where police officers record the name, race, age, reason for the stop, time and date, and who the individual is with. Not everyone who is stopped is carded, but the cards record about 200,000 people stopped each year, or about one person every second shift by an officer. Analysis by the Toronto Star shows that black and brown youth are 2.5 times more likely to be stopped than white youth, three times more likely to be charged with a driving offence, and three times more likely to be held in jail rather than released.  Thus the Toronto police do not only engage in racial profiling in respect to those they stop; they also engage in racial profiling in regard to those they detain and those they charge. This is not the first time racial profiling by the Toronto police has been documented.
 
In October 2002, the Toronto Star published a series of articles alleging racial profiling within the Toronto Police Services based on extensive data they analyzed – over 500,000 incidents over a six year period.[1] In one of its analyses, the Star focused on arrests for simple drug possession (not trafficking) and how arrested individuals of different races were treated. The results? Whites were released on the scene 76.5% of the time, Blacks only 61.8% of the time. For those who were not released immediately, the difference was even more stark: Blacks were kept in jail 15.5% of the time pending a bail hearing, while Whites only 7.3% of the time. Julian Fantino, then Toronto Chief of Police, was quick to respond, "There's no racism...We do not do racial profiling."[2] Craig Bromell who was president of the Toronto Police Association echoed Fantino's beliefs and questioned how the Star had come to its conclusions.[3] Then Toronto Mayor Mel Lastman’s view was typically insightful: “Police only arrest bad guys…I don’t believe the Toronto police engage in racial profiling in any way.”[4]
 
Often times, the product of that profiling and harassment shows up in Court. In 2011, Mr. Justice Khawly found in one such recent large scale prosecution called “Project Corral” that the prosecution’s case was based on an “Elixir of suspicion, convincing rational human beings that what looks, acts and talks like suspicion magically transforms into evidence.” [5] Regardless of who commits crime there is no justification for law enforcement officers or organizations to use bias, stereotyping, or discrimination against individuals or large demographic groups of people. 
 
Racial profiling by any police service is unacceptable and all police officials have a responsibility to ensure that they treat people fairly and professionally. To target a particular race of young people for investigative purposes without reasonable and probable grounds places into question the competence of the police service on a policy level and the conduct of the officers on a personal level. "Competent policing, equals public trust."
 
This is not a Black versus White issue, whether we speak of youth who are Black, Aboriginal, Arabs, Muslim or mixed race, youth workers are at the frontline of persons involved in the receipt of information from young persons who are targeted and harassed by the police. It is therefore important that some measure of training and understanding of the regime of the Human Rights Tribunal be understood and the role youth workers can play as well.
 
It is a fundamental right of all humans and all Canadian citizens to be treated fairly, equitably and with respect by the very institutions mandated to uphold universal human rights instruments and the Canadian Charter of Rights and Freedoms
 
Postscript
 
By letter of November 23, 2012, Alok Mukherjee regretted the incident occurred. Chief Blair on the other hand shifted the reason for not letter Black people into Police Headquarters blaming it on protestors. Recall it was claimed that space capacity and fire code regulations was the issue at the material date.



[1] Rankin, Jim et al., “Singled out”. The Toronto Star. 19 October 2002.
<http://www.thestar.com/specialsections/raceandcrime/article/760539--singled-out>
[2] John Sewell, Police in Canada: The real story (Toronto: James Lorimer & Company Ltd.) at 76
[3] Ibid.
[4] Ibid.
[5] R. v. Agil, Chambers, Fullerton, Jimale and Brown (Ont. CJ. Unreported, July 14, 2011, Khawley J.), p. 8.
 
 
 
 

Friday, November 09, 2012

Moore v. British Columbia (Education), 2012 SCC 61 the locus classicus case in all jurisdictions in Canada under the various Human Rights legislation on the test for establishing a prima facie case of discrimination

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on November 09, 2012

On November 09, 2012, the Supreme Court of Canada in a 9-0 decision in Frederick Moore on behalf of Jeffrey P. Moore v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education, et al. 2012 SCC 61 that will serve as the locus classicus case in all jurisdictions in Canada under the various Human Rights legislation on the test for establishing a prima facie case of discrimination, the burden of justification on the respondent, and whether the respondent claim that I am just doing my job or acting in accordance with policy/practice insulates him/her from a finding of discrimination.
The principles are quite succinctly set out in this decision and will serve to erase all ambiguity that exist between amd amongst various lawyers, adjudicators and Court on the tests to be applied where a discrimination case is brought under the service provision sections of Human Rights Legislation. On the issue of prima facie discrimination: 

[33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

 In terms of the the burden of justification on the respondent once discrimination is shown to have occurred, Madam Justice Abella wrote that: 
 
[49] The next question is whether the District’s conduct was justified. At this stage in the analysis, it must be shown that alternative approaches were investigated (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), at para. 65). The prima facie discriminatory conduct must also be “reasonably necessary” in order to accomplish a broader goal (Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at p. 208; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at p. 984). In other words, an employer or service provider must show “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” (Meiorin, at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 518-19; Council of Canadians with Disabilities v. VIA Rail Canada Inc., at para. 130).

  In terms of looking whether the respondent claim that I am just doing my job or acting in accordance with policy/practice insulates him/her from a finding of discrimination, the Court provided a helpful analysis: 
[58] …A practice is discriminatory whether it has an unjustifiably adverse impact on a single individual or systemically on several: Griggs v. Duke Power Co., 401 U.S. 424 (1971). The only difference is quantitative, that is, the number of people disadvantaged by the practice.
[59] In Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114, this Court first identified ‘systemic discrimination’ by name. It defined it as “practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics” (p. 1138). Notably, however, the designation did not change the analysis. The considerations and evidence at play in a group complaint may undoubtedly differ from those in an individual complaint, but the focus is always on whether the complainant has suffered arbitrary adverse effects based on a prohibited ground.
[60] The inquiry is into whether there is discrimination, period. The question in every case is the same: does the practice result in the claimant suffering arbitrary — or unjustified — barriers on the basis of his or her membership in a protected group. Where it does, discrimination will be established.

This decision is welcome news coming from the highest court in the land given the great debate that arose in Ontario from the decision in the racial profiling in the provision of services case in Pieters et al v. Peel Law Assn. leave to appeal granted at: 2012 CarswellOnt 8616 from the decision of the Divisional Court at 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) that was in stark contrast to the decision of the Court of Appeal in Shaw v. Phipps, 2012 ONCA 155 (C.A.), also racial profiling case.  

In the Pieters case, the Divisional Court stated, at para 14:


…in order to prove a prima fascie case of discrimination, it is not sufficient for a complainant to identify himself or herself as possessing a characteristic that is protected under the Code and then to point to an incident with a negative impact on him or her.

The Divisional Court went on the say that to prove a prima fascie case of discrimination, there must be evidence to support the following findings:
a. A distinction or differential treatment;
b. Arbitrariness based on a prohibited ground;
c. A disadvantage; and
d. A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.

In Phipps the Tribunal concluded after reviewing the evidence and hearing submissions from the parties, that "the applicant’s colour was a factor in Officer Shaw’s continued suspicion of the applicant and his decision to stop and question the applicant." This was upheld by the Court of Appeal which held that "the adjudicator did not assume discrimination, but drew an inference of discrimination from a number of different pieces of evidence".

The appeal hearing in Pieters takes place at the Ontario Court of Appeal, Courtroom One, on December 18, 2012 at 10:00 a.m.


COUNSEL FOR THE PARTIES

APPELLANT  Geri R. Sanson – S. Pieters and B. Noble
TRIBUNAL Margaret Leighton – Human Rights Tribunal
INT Anthony D. Griffin – Ontario Human Rights Commission
INT Ranjan K. Agarwal - SALCO
INT Joseph Osuji – Just Society Group
RES Mark J. Freiman - Peel Law Association
RES Lucas E. Lung - Peel Law Association


This information is provided courtesy of the Law Office of Selwyn Pieters, 181 University Ave., Suite 2200, Toronto, Ontario, M5H 3M7 Phone: 416-787-5928 Chambers: 416-601-6806 Fax: 416-787-6145 Email: selwyn @ selwynpieters  com Internet : http://www.selwynpieters.com




     




Thursday, October 25, 2012

The 37th anniversary and 2012 Annual Dinner Awards of The Urban Alliance on Race Relations

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
 
Posted below are a partial recording of the presentations of the President of the UARR and also the keynote speaker at the event:
 
Speech by Gary A. Pieters, B.A., B.Ed, M.Ed., President, Urban Alliance on Race Relations
 
Speech by Gerry McNeilly, Office of the Independent Police Review Director
 
The Late Charles C. Roach, Barrister and Solicitor was honoured with an award that was posthumously given to his surviving spouse, June Thorne-Roach.
 
 
The event was well attended by numerous members of the legal profession including Vice-Chairs and members of the Human Rights Tribunal of Ontario; Barbara Hall of the Ontario Human Rights Commission, Ian Scott of the Special Investigations Unit; Fiona Crean, Ombudsperson for the City of Toronto.
 
Professors from U of T, UOIT, Osgoode and Guelp University were also in the audience.

 
.
 
 
 

Monday, October 08, 2012

Images from the Commission of Inquiry into the July 18, 2012 shooting at the Wismar/McKenzie Bridge in Linden, Guyana

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
 
These are some of the images from the Commission of Inquiry Into Events in Linden on July 18, 2012
with Nigel Hughes

with Aubrey Norton, Winston Felix and Joseph Harmon

with K. D. Knight, Q.C. and Justice Lensley Wolfe

with Keith Desmond Knight, Q.C. and
Justice Lensley Wolfe

 with K. D. Knight, Q.C. and Justice Lensley Wolfe


With Winston Felix

Winston Felix

Shonette Adams
 
 
ASP Patrick Todd
 
Enrico Wolford





Meeting with Sharma Solomon


Senior Superintendent Clifton and Ronald Burch-Smith

Omeyana Hamilton, Nigel Hughes
Assistant Superintendent Patrick Todd being cross-examined
by Selwyn Pieters

Assistant Superintendent Patrick Todd being cross-examined
by Selwyn Pieters


Clifton Hicken on July 19, 2012







Thursday, October 04, 2012

Today Davies Bagambiire is before regulatory body, Law Society of Upper Canada, responding to allegations of mortgage fraud: See Application http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147488178 [The Notice alleged that he "participated in or knowingly assisted in dishonest or fraudulent conduct by his vendor and purchaser clients, or associated persons, to obtain mortgage funds under false pretences in connection with the purchase, sale and mortgage transactions [in respect of 5 properties]".

Davies Bagambiire attempt to have these regulatory proceedings stayed on the basis of delay failed: Law Society of Upper Canada v. Davies Bagambiire, 2012 ONLSHP 122 (CanLII): "In his affidavit the Lawyer states that the delay in the proceedings has had a negative impact on his practice, caused by the time required to locate and produce files for the Law Society, the insecurity and uncertainty of being under investigation and eight years of disadvantage in attempts to expand his practice as he was unable to hire prospective employees due to the stigma of the Law Society investigation."

For his past misconduct history see,
Law Society of Upper Canada v. Davies Bagambiire, 2011 ONLSHP 69 (He was ordered to serve a one-month suspension, to commence 24 December 2010. He was ordered to refund to client TF the $5,000 retainer, by the end of June 2011); Law Society of Upper Canada v. Davies Bagambiire, 2008 ONLSHP 70 (The Lawyer is suspended for two months, commencing March 1, 2008. Upon return to practice, the Lawyer shall be supervised for a period of two years) and See also, Re Bagambiire Formal Hearing Panel Decision, N.S.B.S. 43, November 15, 1990

Sunday, July 22, 2012

Case Analysis on social media, the modern workplace and Human Rights related harassment: Taylor–Baptiste v. OPSEU

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer and Notary Public of the Bars of Ontario, Guyana and Trinidad

Facts

The facts of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 have not been repeated in this analysis. The facts as accepted by the Tribunal could be found in paragraphs 4 – 19 of the decision.

The Issue

The question of law decided by the Tribunal is whether the content of the blog posts violated the protections in section 5(1) and 5(2) of the Human Rights Code, R.S.O. 1990, c.H.19 (“the Code”) against discrimination with respect to employment and harassment in the workplace on the grounds of marital status and/or sex:

 While the facts are straightforward, they raise difficult and challenging issues and conflicting interpretive values. In what circumstances are statements outside work hours, on line, “with respect to employment” or “in the workplace.”? In what circumstances, if any, can a manager make a Code claim against the Union or its leaders for statements directed at union members about the workplace relationship?[1]

Legal Reasoning

The decision turned principally on undisputed facts and law.[2]  It was argued on behalf of the Applicant that a "blog is an extension of the workplace, and that social media, including blogs, Facebook and Twitter are integrally woven into the fabric of the modern workplace."

[25] I agree with the applicant that employers can discipline employees for actions they take in cyberspace, and that the Code may apply to workplace-related postings on the internet. It is not open to serious doubt, in my view, that in 2012 postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them.

The Applicant also argued that:

The Code does not have a hierarchy of those deserving of protection and those that do not based on whether they are frontline employees, supervisors, managers, union presidents or directors.“Every person” in an employment relationship therefore captures the relationship and interaction between a local president of a union and a manager who seeks to bring a human rights application before the Tribunal.

The Tribunal applied a purposive and contextual interpretation of section 5 of the Code.[3]The Tribunal found that the blog comments were not harassment ‘in the workplace’ under section 5(2), even given its broadest interpretation. This was because the posts ‘were made on a blog identified with the union that, although open to the public, was directed at communication between union members and their leadership.”[4] In other words, the Tribunal is saying that for section 5(2) to apply to postings in cyberspace, there must be a sufficient nexus or connection. The Tribunal was less clear about what exactly would constitute a sufficient connection.

The Applicant in her submission submitted that "to establish that a blog, a facebook group or any other form of social media form part of the workspace a nexus has to be established between the employer and the errant employee in cyberspace and this could be done by quantification of the number of explicit references, quantification of the number of named individuals, direct/indirect references and a corollary assessment of the employer’s policy practice in this area and response to the particular incident are key starting points."

While it is not mentioned anywhere in the Tribunal's judgment, on October 27, 2011, the Tribunal dismissed a Request for Order during proceedings in which “the Applicant request the following Orders in advance of the proceedings to be dealt with in writing:

                                                               i.      That the Respondents disclosed to the Applicant, through her counsel: 
a) The IP addresses and email addresses for the anonymous posters;
b) Raw data logs that showed the visitors to the Blog at the material time the material were posted;
c) All deletions and updates to the Blog for the material time.”

The Tribunal said at the time this evidence was tangential to the main issues - yet the absence of this very evidence was significant to whether or not the postings originated "in the workplace."

In considering whether the respondent’s actions constituted discrimination under section 5(1) of the Code, the Tribunal deemed it necessary to consider all relevant circumstances, including:

  1. the seriousness of the conduct;
  2. their significance;
  3. their effect on the workplace;
  4. the role of the person making them;
  5. the effect on the applicant; and
  6. the reaction of the respondent to any concerns raised

The Tribunal held that Mr. Dvorak’s comments were protected by the right to freedom of expression in section 2(b) of the Canadian Charter Rights and Freedoms and also the right to freedom of association in section 2(d) of the Charter.[5]  “This case involves an issue of competing rights” Ms. Taylor – Baptiste’s Code rights to freedom from discrimination with respect to employment and harassment in the workplace and the union’s core Charter rights to express themselves on matters of concern in the union-management relationship.”[6]

Balancing the competing rights of the applicant and the respondent, the Tribunal assessed Mr. Dvorak’s rights against the appellants right to freedom from discrimination with respect to employment and harassment in the workplace: “The Tribunal has emphasized that ambiguity in the scope of Code rights should be resolved in favour of protecting matters at the core of Charter rights and freedoms.”[7] The Tribunal disagreed that merely mentioning the applicant by name “as being the spouse of Mr. Gray, or as being the ex-spouse of Mr. Taylor-Baptiste” or simply raising concerns about nepotism without accompanying denigrating or humiliating comments, was sufficient to amount to discrimination on the basis of marital status.[8] 

The Tribunal was concerned about “the use of sexist language to convey the point of nepotism.” It found that the Respondent “drew upon frequently used sexist stereotypes about women in positions of power ‘sleeping their way to the top” through suggesting that her qualifications for the job was ‘intimate knowledge of another deputy.’” The Tribunal also found that the comment “if you don’t know the answers to something this simple you should call your boyfriend over at his office” draws upon the stereotype that women get ahead through their relationships with more competent ‘boyfriends.’”[9] It found that the comment“ ...let Ms. Baptiste know that if she needs any help making a decision in the future, I’m sure he (the Applicant’s ex-husband) would help her. Maybe she should go back to her maiden name, or Gray, so as not to besmerch (read besmirch) the good ‘union’ name of Taylor-Baptiste” “also raised issues of sexism.”[10] “Then Tribunal went on to find that “this issue and suggestion targets her as a woman because it was traditionally women who were expected to change their names upon marriage. This is an issue of gender and it singles her out as a woman.”[11]

The Tribunal then observed that Mr. Dvorak failed to consider or address at that time the ways in which his posts could violate the Code or hurt individuals.”[12] 

Despite this, the Tribunal found that respondents did not discriminate against the applicant.  The Tribunal assessed the following key factors to reach the decision:
Mr. Dvorak’s conduct as a Union President: as an active participant on behalf of the union in a process of restoration of a workplace that had been poisoned through racists hate mail; the Tribunal accepted the respondent’s evidence that the Mr. Dvorak had genuine concerns about nepotism and his comments were directed at union membership and related to the union-management relationship.[13]
  1. Frequency of the posts:  the applicant was only mentioned once in the blog even though the blog was publicly accessible for a month; the tribunal also mentioned that the posts lost significance as more issues were raised.[14]
  2. Union comments on workplace issues are constitutionally protected expressions of opinion and exercise of freedom of association and the union’s right to operate independently of the employer. [15] “Strong criticism from the union is often inherent in being a manager in a tense unionized workplace.”[16]
Based on these factors, the Tribunal held that ‘while they [the blog posts] were relied upon sexist language, they were not gratuitous attacks unrelated to union business.” [17] The Tribunal stated that the most important factor was the fact that “union comments on workplace issues are constitutionally protected expression of opinion and exercise of freedom of association, and close to the core of those rights.”[18]

The Tribunal in weighing the competing rights in this case found that “most significant to my decision in this case are that the postings are tied to communications to the membership on issues of labour-management relations and the absence of Code-related effects in the workplace.”[19]

As a result of these findings, the Tribunal found that the applicant was not harassed and not discriminated against by the Respondents and ordered that the Application be dismissed.

No decision has yet been made on whether or not the Applicant will be judicially reviewing this decision.

Selwyn A. Pieters -  Lawyer and Notary Public; 2012 All rights reserved



[1] Taylor – Baptiste v. Ontario Public Services Employees Union 2012 HRTO 1393, para 2.
[2] See para. 3 of the judgement
[3] See para. 21 of the judgement
[4] See para. 26 of the judgement
[5] See paragraph 29 of judgment. The Tribunal placed reliance on the recent Supreme Court decision in Fraser v. Ontario (Attorney General), 2011 CarswellOnt 2695; 2011 SCC 20 as support for this proposition. It was argued that the conduct engaged in by Mr. Dvorak “was not to be considered collective bargaining towards a collective agreement.”
[6] See paragraph 36 of the judgment
[7] Ibid.
[8] See paragraph 30 of the judgment
[9] See paragraph 31 of the judgment
[10] See paragraph 34 of the judgment
[11] Ibid.
[12] See paragraph 35 of the judgment
[13] See paragraph 35 and 37 of the judgment
[14] See paragraph 36 of the judgment
[15] See paragraph 37 of the judgment
[16] See paragraph 39 of the judgment
[17] See paragraph 40 of the judgment
[18] Ibid.
[19] See paragraph42 of the judgment