On October 28, 2011 the Supreme Court of Canada issued a decision in Canadian Human Rights Commission and Donna Mowat v. Canada (AG) in which it ruled that the Canada Human Rights Tribunal has no jurisdiction to award compensation for legal costs incurred by human rights complainants. The Court found that s. 53(2) of the Canada Human Rights Act, the provision that contains the authority compensate for "any expenses incurred by the victim as a result of the discriminatory practice” does not include compensation for legal costs incurred to prosecute a complaint.
The BC Human Rights Act contains a similar provision at s. 37(2)(d) and the BC Human Rights Tribunal has also awarded legal costs to complainants in particularly egregious cases. See for example http://www.bchrt.bc.ca/decisions/2008/pdf/oct/376_Senyk_v_WFG_Agency_Network_(No_2)_2008_BCHRT_376.pdf. Undoubtedly the Supreme Court of Canada ruling in this case will have a significant impact in our province as well.
Employer who exposed workers to asbestos found guilty of contempt
"Arthur Moore exposes his workers to asbestos, a deadly substance, without protection and upon forged hazardous-material reports that conceal the danger. He exploits young recovering addicts as his workforce." So begins WCB v Moore a unanimous judgment issued to-day by the BC Court of Appeal. After several unsuccessful attempts to have Moore stop this practice, the Workers' Compensation Board obtained a court injuction. But Moore continued and WCB made an application to the BC Supreme Court citing Moore "doing business as AM Environmental" for contempt of the injunction.
Read moreVariation of a certification--common and not-so common objections
In the recent decision Canadian Corps of Commissionaire v. PSAC , Vice Chair Bruce Wilkins dismissed the employer's objections to PSAC's application to vary its multi-site certification to include alarm response drivers who worked out of the Commissionaires' headquarters in Victoria and ordere that the votes be counted.
The employer had three objections to the application to vary. The first was an uncommon objection. The employer argued that there was a clause in the collective agreement that provided these employees would be excluded and could not be organized.
LRB orders employer to provide information to the union
In Port Transport Inc and CAW, a decision issued by the LRB on March 23, 2011 Vice Chair Topalian declared that Port Transport Inc had committed an unfair labour practice by refusing to provide the union with the following information:
a) a current contact list containing the names, addresses, telephone numbers and e-mail addresses of all members of the bargaining unit,
b) specific information on each bargaining unit member including name, date of birth, benefit coverage (single,family, enrolled, not eligible, etc.), wage rate(s), premium(s),job classification(s) and any other form of remuneration including but not limited to vacation entitlement, and any profit-sharing, incentive or bonus plans in effect, and
c)actual data on usage and cost on all areas of any benefit plan for the past three (3) years.
BC Court of Appeal--standard of review of Human Rights Tribunal Decisions
In Lavender Co-Op Housing the BC Court of Appeal today upheld a lower court's decision that overturned the BC Human Right's tribunal finding of prima facie discrimination on the basis of marital status against the membership rules of a cooperative housing society.. For those interested in the "standard of review" this is a good case on the applicable standard to questions of "mixed law and facts" (and yes, it is correctness). For the rest of us, the case confirms that prima facie discrimination is established not by a comparative analysis, but by determining whether the conduct complained of is prohibited under the Human Rights Code by definition.
First collective agreement--retroactive imposition is okay
In Osprey Care v. HEU issued on March 1, 2011, Vice Chair Ritu Mahil of the BC LRB dismissed Osprey’s application for review of an arbitrator’s decision in which, in the course of imposing a first collective agreement under s.55 of the Code, Arbitrator Vince Ready made the collective agreement retroactive to February 24, 2010 and set out an expedited process by which certain outstanding grievances would be resolved.
Read moreLRB upholds decision to terminate LTD benefits
In Dewell v. BC Public Service Agency Vice Chair Adam dismissed a grievor’s application for review of the decision of a claims review committee that upheld cutting off her long term disability benefit. Under a number of BC public sector collective agreements (public service and health for example) medical disputes about long term disability are adjudicated by a panel of doctors. The LRB has ruled that such decisions fall within the definition of an arbitration which is reviewable under s.99 of the Code and the usual tests for review apply.
Read moreSexual Harassment--Human Rights Tribunal awards $30,000 damages for unwanted sexual text messages
In McIntosh v Metro Aluminum Products and another issued by the BC Human Rights Tribunal to-day, Tribunal member Enid Marion awarded a total of $30,000 in lost wages and damages to a woman who complained that her boss' unwanted sexual text messages caused her to quit her job.
The complainant had a sexual relationship with Zbigniew Augustynowicz, the owner of the company where she was employed. When she ended the affair he repeatedly sent her text messages that were sexual in nature and aggressive in tone.
The BC Polygamy Case: Be Careful What you Criminalize
Progressive groups are lined up on either side of the ongoing court hearing in BC about the constitutionality of Canada’s anti-polygamy law. That is not surprising, as the issues are complex and the best outcome is not at all obvious.
What is Criminalized
The crime of polygamy may invoke the image of coerced marriages of multiple adolescent girls to older male church members in the town of Bountiful.
However, section 293 of the Criminal Code criminalizes a far wider range of domestic arrangements.
Law, Order and Retreat
In Canada today there are two entirely different concepts of the criminal law and its function. These concepts reflect fundamentally divergent views of the nature and role of the state and of authority within society. The adherents of each of these concepts are incapable of comprehending the other: there is no space for meaningful debate of the issues, so totally different are the two domains.
To one side – let’s call it “Tough on Crime” – the function of criminal law is a balancing of accounts, a restoration of moral equilibrium.
Read moreOur Barcelona Chat with Danny Williams
Danny Williams’ announced retirement as Newfoundland Premier brought to mind my only encounter with him, which occurred in an unlikely setting.
Carmela and I were waiting in Barcelona Airport on Canada Day 2009, waiting for our flight to Madrid while on holiday. The Premier of Newfoundland, flanked by an aide, came along and sat in the waiting-area seat back-to-back with mine, and we soon struck up a lively conversation. He was meeting with the Spanish to talk about fishing.
Read moreBuilding Triumph over the Shame of Residential Schools
“As I sat in the Chief Joe Mathias Hall and listened to the riveting accounts of the legacy of this deliberate policy of brutalization, I thought of my own sheltered childhood in a White suburb of Toronto, and of the portion of my weekly Sunday School collection donations at Thistletown United Church that helped finance the hideous abuse of other little children and their families.”
Today I attended a public education initiative sponsored by the Indian Residential School Survivors Society.
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