Thursday, February 03, 2011

Wiselaw On Audmax

The Ontario Human Rights Tribunal seems to have really blown the call on this case:

A Mississauga businesswoman whose home was ordered seized to pay an Ontario Human Rights Tribunal award to a former employee can keep her house — for now.

The Superior Court struck down the “fatally flawed” decision as so unfair to defendant Maxcine Telfer — who represented herself in the hearing — that it was “simply not possible to logically follow the pathway taken by the adjudicator.”

Luckily, we have legal eagle Christopher Bird around to discuss the larger implications for the OHRT and other rights tribunals around the country:

Human rights tribunals in Ontario (and across the rest of Canada, for that matter) have been the subject of intense criticism in the past, with many complaining that HRT decisions such as Ms. Telfer's were not treated with the appropriate seriousness such matters merited.

Certainly, Audmax will serve as fodder for that line of argument. Others have suggested that HRTs are themselves a waste of state resources which would be better allocated to the traditional court system; while Audmax demonstrates that HRTs can be flawed in execution, it does not necessarily follow from the decision that the system must therefore be scrapped.

What Audmax ultimately demonstrates to the reader is that Divisional Court is willing to consider with the utmost seriousness whether HRT outcomes are merited, that they are willing to review them where they feel they are incorrect or unfair, and that although HRTs decisions have been statutorily protected, they are not ironclad.

This is probably for the best. The Courts' willingness to review flawed administrative rulings is ultimately necessary to preserve trust in the system.

So there you have it.


Jerome Bastien said...

I read that decision yesterday. It really got my blood boiling. But at the same time I enjoyed it because the divisional court ripped the HRT a new one.

You can spin it like Wise does, but really, the level of incompetence at HRTs are something to behold. I would spin it to suggest that the HRTs are so incompetent, that they will always need to be reviewed, and they are therefore useless.

Also interesting, this decision reveals that 'muslim' trumps 'black' at the HRT (because clearly, the original HRT decision wasnt taken on the application of any legal principle, but rather the position of the complainant and defendant on the victimology hierarchy scale).

I would add that this muslim woman was herself victimized by the HRT - in that she thought she had a case when she clearly didnt, and ended up getting stuck with $10,000 in costs payable to the defendant.

Garry J. Wise, Wise Law Office, Toronto said...

Two points.

The post in question was actually written by Christopher Bird of my office, rather than me. Credit where due.

I agree with Christopher's views entirely.

We have appellate courts in Canada to review incorrectly decided rulings. Most appellate court time is spent on appeals of Judge's rulings, and such appeals are often successful. That does not mean we should close down the courts.

The Div Court's Audmax appeal ruling should merely add another layer of comfort for those who typically aren't happy with OHRT decisions. These decisions can be - and often will be - challenged.

That will strengthen the system and clarify the rules. The Tribunal will be bound to follow the principles articulated in those appeal decisions.

The Tribunal system will benefit from that process, just as judges benefit from the procedural and substantive clarity of appeal rulings of the Courts' decisions.

Jerome - what other Ontario Human Rights Tribunal decisions do you take issue with?

bigcitylib said...

Sorry Garr, didn't see that. have made the change.

Jerome Bastien said...


I couldnt name you a decision off-hand, as I dont practice human rights law and I only have a passive interest in the subject of HRTs. But I've tried to keep up with their shenanigans ever since the Steyn/Levant fiasco.

I take your point wrt appellate courts and lower courts, and I've read plenty of appellate court decisions. Sometimes the lower court gets something wrong and is corrected by the appellate court. I understand that very well.

But this was another thing entirely. Essentially every portion of the HRT's decision was ripped to shreds by the divisional court. This is an extremely rare occurrence between a lower court and a court of appeal.

The rules of evidence were mangled to the point of being unrecognizable, and the legal reasoning is simply absent.

This is because lower courts have judges which are competent and learned in natural justice and procedural fairness, while HRTs are staffed by victimology industry hacks with little or no legal training.

You write:
That will strengthen the system and clarify the rules.

Hopefully it does. But just the fact that a ruling as abysmally terrible as this one was issued shows that there is a very long way to go before the HRT hacks become minimally competent.

Decisions like this have another, more sinister effect which is very hard to detect. They transform every minority into a litigation-bomb. Why would an employer ever take a chance on hiring a minority if he risks getting hauled before one of these bodies? The relief obtained at the divisional court is cold comfort - they only got a writ of certiorari (is this the right spelling?) and they now need to go through the whole process over again. In the very best scenario, the defendant will only have wasted hundreds of hours and only have lost a few $Ks in legal fees.

Based on this, it only makes sense, that an employer (even one without a racist bone in his body) would choose a white candidate over a minority one, everything else being equal. This is the very opposite of what human rights law seeks to achieve, yet this is what it does achieve.