Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. January 31, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $159.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Is the workplace microwave a human rights matter? D o human rights rules cover the food we heat up in the micro- wave at work? Can an employer dictate the type of hijab a staff member can wear? Those are among the interesting ques- tions explored in a Human Rights Tribu- nal of Ontario ruling, Saadi v. Audmax, that resulted in a court decision on a judi- cial review application this month. Seema Saadi launched the case after her employer, Audmax Inc., fired her from her job as an intake settlement worker. Audmax is a company that re- ceives public funding to run programs aimed at diverse ethnic and religious communities. As HRTO adjudica- tor Faisal Bhabha noted, "the evidence establishes that discord in the office preceded the applicant's hire," includ- ing distrust over an incident in which a Muslim woman claimed she overheard a colleague making disparaging remarks about her appearance. The case was very complicated and involved a number of issues at the work- place, but part of Saadi's allegations of discrimination centred on Audmax' microwave policy, which said that due to "food allergies and odour from some food, please refrain from or strictly limit the use of the Microwave [sic] for foods that present same." Saadi, who is Mus- lim, claimed the policy "had an adverse discriminatory effect," Bhabha noted. In another instance, Saadi complained about the company's dress code, which she had gotten into trouble for violating by wearing, among other things, a cap. The cap, Saadi said, was a form of hijab she had bought online from Indonesia that she thought would be more elegant. Bhabha found the employer, Maxcine Telfer, had gone too far in dictating what style of hijab she would allow. The Hu- man Rights Code, according to Bhabha, guarantees people's right to choose the form of religious headdress they wear. In the end, Bhabha ordered the com- pany to pay Saadi $15,000 for the viola- tions in addition to $21,070 in lost wag- es. But in the Divisional Court ruling this month, Justice Anne Molloy, writ- ing for a three-judge panel, was rather scathing in her criticism of the HRTO decision and overturned the award. Part of the issues focused on procedural matters stemming from Bhabha's refusal to accept the evidence of a defence witness. But she was also critical of the findings of discrimination. On the microwave, for example, Molloy said Bhabha made no findings as to what food the company's policy prevented Saadi from reheating. "The reasons are so sparse on the factual underpinnings for this aspect of the decision that it is impossible to follow the pathway by which the adjudicator came to his conclusion of discrimination," Molloy, who was similarly critical of the findings about the dress code, wrote. Regardless of the ultimate validity of either side, it's clear that the HRTO rul- ing went too far. But hopefully misguided politicians like Ontario Tory Leader Tim Hudak won't use such decisions as fodder for their bid to abolish the tribunal, which is part of a human rights system that has improved our society. At the same time, what's unfortunate is that cases like Saadi come about in the first place. At a workplace whose mandate deals precisely with issues of diversity, one would hope those involved would have prevented the problems in the first place or been able to deal with them without going all the way to an HRTO hearing. — Glenn Kauth how parents are to govern them- selves in dealing with each other and when interacting with their children go ignored or are simply chalked up to good intentions. That wasn't the case in Gill v. A Chiang, a decision of Justice A. Duncan Grace. The matter dealt with a contempt motion against the father, James Chiang, for al- legedly breaching the terms of an arbitration award arising out of a mediation-arbitration pro- cess and subsequently turned into a formal court order. The case apparently dealt with extremely high conflict and, as a result, the very de- tailed arbitration award tried to leave no stone unturned in an attempt to minimize future dis- cord. The two allegations of con- tempt I found most interesting were that Chiang alienated the children and sent communica- tions to Johanne Gill and the kids that violated the parenting principles in various ways. In Chiang shows courts' intolerance for hostility involving kids Family ll too often, clauses in separation agreements or court orders related to particular, they were denigrat- ing and critical in some cases, while those that included the children placed them in a po- sition in which they found themselves embroiled in their parents' frequent disputes over scheduling, extraordinary and special expenses, and extracur- ricular activities. According to Grace, Gill filed as evidence almost 400 pages of e-mail communications between the parties and the children to support her allegation that, since the arbitration award, Chiang had continually undermined the principles of tolerance, co-opera- tion, and restraint it articulated. To be clear, this was not a motion to change terms of custody or ac- cess on the basis of the parties be- ing unable to work together and communicate effectively. This was a contempt motion with very serious implications for Chiang. Grace provided some very telling examples of how Chiang had undermined the principles of the award. They included for- warding e-mails Gill sent to him Law By Marta Siemiarczuk to their son while "commenting briefly, colourfully, and inap- propriately about it" and doing the same with messages dealing with s. 7 expenses while pro- viding his view on who should pay. He also sent his son e-mails stating, in reference to his oth- er son, "Just don't let Nick get saddled with ur mother alone," along with other similar types of messages. As for an explanation for his actions, Grace noted Chiang didn't deny sending the mes- sages. Rather, he indicated it was his ex-wife who was "pro- jecting" her own behaviour onto him and that she was the one undermining the terms of the award. Grace had this to say about Chiang's actions: "His description www.lawtimesnews.com of Ms. Gill and her communica- tions are unnecessary and insult- ing, and his negative views of Ms. Gill are not only shared with the children but . . . evidence his at- titude that time spent with Ms. Gill . . . is something to be en- dured not enjoyed." In considering the matter, Grace applied the test for con- tempt found in Sickinger v. Sick- inger. It asks whether there was evidence beyond a reasonable doubt that the order in question clearly outlines what the parties are to do and not do; that the moving party has provided clear details of the contempt to the respondent; and that the respon- dent has wilfully and deliberately disobeyed the order. Confirming that the fact that an arbitration award underlies the court order didn't diminish its enforceability — notwithstanding submissions to the contrary by Chiang's coun- sel — Grace held that Chiang did in fact deliberately and wil- fully contravene the parenting principles incorporated into the order and was in contempt. As noted earlier, I think it's fair to say it's rare that these kinds of clauses in orders get to the point of actual contempt motions. It's also unusual to see them actually end in a finding of contempt with a penalty im- posed. Given the difficulties in family law matters that are so personal to the people involved and the challenging dynamic of interacting with each other, this case is certainly something to keep in mind. Unfortunately, Grace or- dered the parties to return later in February to speak to the issues of costs and penalty, so we don't yet know what will happen to Chiang. Still, at least we know the court won't tolerate this type of high-con- flict communication. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Kathleen Chapman & Associ- ates in London, Ont. She can be reached at msiemiarczuk@gmail. com.

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• Stepping Up
• Parental Hostility
• Focus On IP/Trademark Law