Law Times

Law Times • November 5, 2018 Page 7 www.lawtimesnews.com Decision good step for vulnerable workers BY FATHIMA CADER T he single most remarkable thing about A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 has to be how relatively unremarked it has gone. It marks the highest general damages award in Ontario Human Rights Tribunal history, but it is also significant because of how the tribunal treated what were deeply distressing facts. The ruling involves an applicant, A.B., who took a job at Joe Singer Shoes shortly after moving to Canada. Her employer, Paul Singer, was also her landlord. She was a single mother of a child with epi- lepsy. For nearly two decades, Singer sub- jected her to racial and sexual abuse. The tribunal found that when A.B. tried to stop him by threatening a lawsuit, Singer evicted her. By the time of the hearing, A.B. was 59 years old. Consequent to the years of sexual trauma, A.B. had been diagnosed with complex post-traumatic stress disorder, which included symptoms of dissociation, hypervigilance, memory impairment and occasional psychosis. The Singer decision follows closely on the heels of the better-known O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675. That application had initially been filed in 2009 by what is now Unifor on behalf of 39 workers at Presteve, a fish-processing plant in the Leamington, Ont. area. Pre- steve had hired all 39 workers through Canada's controversial Temporary For- eign Worker Program. In Presteve, procedural issues and vari- ous settlements eventually whittled the ap- plicants down to two employees, O.P.T. and M.P.T. In 2015, the tribunal awarded the two women a collective $200,000 as a result of the persistent sexual assault and harass- ment they had faced from Pre- steve's owner, Jose Pratas. The tribunal held that O.P.T.'s and M.P.T.'s vulnera- bility was a direct consequence of "the closed work permit that requires [migrant work- ers] to be tied to one employer and so be under the constant threat and fear of losing their employment and being repa- triated [i.e., deported] without reason and without any avenue for appeal or review." In Singer, the tribunal awarded that same amount — $200,000 — to A.B. alone. Unlike O.P.T. and M.P.T., A.B. was not formally a "migrant worker" as she was not bound by a closed work permit and, there- fore, was permitted by law to leave her employer-landlord. Nevertheless, follow- ing A.B.'s testimony that "she was scared to be homeless and to leave her job because Mr. Singer told her that without him she would have nothing," the tribunal found that A.B. was "virtually unable to leave." Given her vulnerabilities, the tribu- nal accommodated A.B. by allowing her to testify via video link. Singer could see her, but she could not see him. This was intended to somewhat lessen the mental health harms posed to A.B. by the hearing process. On its own initiative, the tribunal also decided to anonymize the decision, citing "significant risk of harm to and re-victim- ization of the applicant through publica- tion of her identity." Singer's defences were various. He challenged the racism claim, testifying that "while he knew the applicant's [then] husband was Iranian, Iranians were not terrorists at that time, and he did not call him that." He attempted the joke de- fence, with the ruling noting that he "admitted he made fun of the applicant's accent and use of English at times, testifying he liked to make jokes. Mr. Singer dismissed this as he and the applicant laughing together." During hearing, Singer at- tempted to impugn A.B. not having reported the assaults earlier. The tribunal rejected this argu- ment, saying: "When assessing credibility, it was a reversible error of law to rely upon stereotypical assumption that sexual as- sault survivors are likely to report the as- sault in [a] timely manner." The tribunal's observation that Singer "was combative with the applicant's coun- sel at times" contributed to its finding that Singer had created a poisoned work envi- ronment for A.B. "The language he used with the appli- cant and the combativeness he displayed toward her counsel displayed a lack of re- spect for women generally," said the ruling. Singer's courtroom conduct was con- sistent with the applicant's testimony that Singer had "told her she was stuck and that while he had money and could get the best lawyers, she would have to rely on young, stupid lawyers from the community law office." A.B. was represented by Emily Shepard and Kimberly Srivastava of the Human Rights Legal Support Centre. The tribunal also took a careful view of A.B.'s health symptoms, themselves the consequences of the repeated rapes she had suffered, saying: "Because of the ap- plicant's memory difficulties, I find that although her evidence with respect to the timing of the progression of the assaults was not reliable, it does not detract from her credibility." A.B. had testified that she hated stay- ing at Singer's because "she felt low be- cause she could not protect herself and yet still had to protect her son." Yet, this decision is a testament to A.B.'s incredible strength, proving one record of a woman's fight over years and over hur- dles both individualized and systemic. It is unfortunate that for years A.B. had to fight this battle alone. As an example of how unions can help shape safer work- places, the Presteve application, where the applicants had the backing of a union, was filed within two years of O.P.T. and M.P.T. arriving in Canada. In contrast, A.B. filed her application nearly 30 years after beginning work at Singer. A.B.'s case is a rare win. Our legal sys- tem remains a recourse of dubious ef- fect for women resisting violence in their workplaces and their homes. This decision remains only one factor among many that victimized women will need to consider when assessing the harms that the law it- self — with its delays and re-traumatiza- tions — will cause them. With the fight for safe work continu- ing under Ontario Premier Doug Ford's recent amendments to employment and labour law, we must support preventive measures so that no worker finds them- selves having to consider litigation in the first place. LT uFathima Cader practises public interest, human rights and labour law in Toronto. She can be reached at cader@caderlaw.ca. Familiarity with retail cannabis rules needed BY WHITNEY ABRAMS O ctober 17 has come and gone. Recre- ational cannabis is now legal across Can- ada and demand spiked instantly. The Ontario Cannabis Store, for ex- ample, says it received about 100,000 online orders within the first 24 hours of cannabis becoming legal. Twelve thousand of these orders were placed within the first hour of legalization. The federal Cannabis Act, which came into force on Oct. 17 and legalized recreational cannabis, left key as- pects of regulation to the provinces and territories. Spe- cifically, provinces and territories are each responsible for developing systems for the distribution and sale of recreational cannabis, as well as developing restrictions on consumption of cannabis in their respective juris- dictions. On the same day that recreational cannabis was le- galized on a federal level, Ontario's Bill 36, the Canna- bis Statute Law Amendment Act, 2018 received royal assent and changed previously established regulations on the consumption of cannabis at the 11th hour. This meant that lawyers specializing in cannabis and otherwise needed to become re-familiarized with a brand-new regime. Immediately, lawyers impacted by cannabis legalization in a multitude of areas need- ed to consider what impact the change had on clients' business plans and how to advise clients to change and adapt to the new legislation. Beginning April 1, 2019, Ontarians will see privately run stores sell recreational cannabis and cannabis ac- cessories under strict regulation from the Alcohol and Gaming Commission of Ontario. The AGCO will be evaluating and granting applications to retail operator hopefuls. Until the bricks-and-mortar retail stores are up and running next year, all legal sales in Ontario will be done through the OCS' online store. I am sure the general public is anxious for the ap- plication process to get started. Last week, the Ontario ombudsman confirmed that his office had received more than 1,000 complaints from customers frustrated with slow delivery times, poor customer service and unexplained changes or cancellations to their orders from the OCS. As soon as the plan for Bill 36 was announced, law- yers practising in all areas needed to be aware of the im- pact of cannabis legalization in Ontario. Bill 36 amended and renamed the former Canna- bis Act, 2017 to the Cannabis Control Act, 2017. It also amended the Ontario Cannabis Retail Corporation Act, 2017 and the Liquor Control Act and created the new Cannabis Licence Act, 2018, which outlines licensing for private retail cannabis stores in Ontario that will launch in April 2019. Bill 36 also created the new Smoke Free On- tario Act, 2017. The effect of the new SFA is significant. Ontario's prior legislation would limit cannabis consumption to private residences. Now, under the new SFA, smoking and/or vaping (i.e., using an elec- tronic cigarette or inhalant-type device) cannabis is now permitted in any location where smoking tobacco is permitted. Ontarians may now consume cannabis in many outdoor public places, including sidewalks and parks, certain designated guest rooms in hotels, motels and inns, residential vehicles and boats that meet certain criteria and, if certain prescribed requirements are met, in controlled areas in certain long-term care homes, retirement homes, supportive housing residences and psychiatric facilities. This change has come as a shock to many city coun- sellors and municipalities. The province has given mu- nicipalities options to enact bylaws to set rules be- yond the provincially set minimum standard. Many municipalities have been immediately responsive to the consumption issue and many have already be- gun to establish bylaws to control consumption. The passing of Bill 36 also means that a new frame- work for recreational cannabis retailing has been intro- duced. Under Ontario's former cannabis legislation, all retail in Ontario would be controlled by the govern- ment through a subsidiary known as the Ontario Can- nabis Store. Municipalities again have some power to prohibit the presence of retail stores. By passing a special reso- lution before Jan. 22, 2019, municipalities may take advantage of an opt-out of the cannabis retail frame- work. The catch? The municipal opt-out is a one-time- only offer. If municipalities either miss the deadline or opt in to the cannabis retail framework, they will not get another chance to opt out. However, municipalities will always have the option to develop bylaws to impose limits on the location of retail, consumption and other things. A municipal election was held in Ontario on Oct. 22. New and re-elected policymakers need to consider the attitude of their communities and city counsellors and whether or not the municipalities they serve are open to cannabis retail or not. Similarly, any potential retailer and their advisors must be mindful of munici- pal attitudes toward retail in order to avoid any road- blocks in the application process. LT uWhitney E. Abrams is a lawyer at Minden Gross LLP and an active member of the firm's Cannabis Law practice group, where she provides regulatory and business advice to domestic and international cannabis stakeholders. She can be contacted at wabrams@mindengross.com and followed on Twitter at @whitneyeabrams. u SPEAKER'S CORNER COMMENT Law Rebooted Fathima Cader

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