Law Times

Law TiMes ��� March 4, 2013 S Page 7 COMMENT Guergis has lost everything u Letter to the ome politicians have all the luck. The judgment came down this past week. OnOthers have none at all. Ask Helena Guergis. tario Superior Court Judge Charles T. Hackland The Hill Two years ago, Prime Minister Stephen ordered Guergis to pay $118,560 in lawyers��� fees Harper dumped her from his cabinet and to Harper, his assistants, and others named in her tossed her out of the Conservative caucus without allegation of conspiracy. The judge gave Guergis ever publicly saying why. He just ended her politi30 days to pay up. cal career. The money will go to Harper, his principal Was it because of the hissy fit she threw at the secretary Ray Novak, Minister of Labour Lisa airport in Charlottetown or because her husband Raitt, and parliamentary secretary Shelly Glover. Rahim Jaffer got caught driving drunk at double They get to share $46,500. Guy Giorno, Harper���s the speed limit with cocaine in his jacket pocket Richard Cleroux former chief of staff who is now with Fasken on his way home? Or was it due to his use of her Martineau DuMoulin LLP, gets his cut. ministerial office to conduct a little bit of lobbying ��� like The Conservative Party of Canada gets $26,560. So does trying to sell several million dollars��� worth of solar panels ��� the Conservative Party lawyer, Arthur Hamilton, and his on Parliament Hill? law firm, Cassels Brock & Blackwell LLP. Harper announced he was calling in the RCMP to invesGuergis has lost everything: her reputation, her savings, tigate her but wouldn���t say for what. He just said it was ���seri- and her job as a minister and an MP. Leitch still has the Simous allegations.��� coe-Grey riding. The Mounties took Harper seriously. They investigated The judge used interesting wording to explain his judgher up and down, inside and out, and finally came back and ment: ���When a plaintiff, as in this case, chooses to sue a wide said she had done nothing wrong. She was as clean as the variety of defendants on the basis of accusations of conspirdriven snow, they found. acy and bad faith, the expectation must be that the claims But Harper wouldn���t take her back. He wouldn���t say he will be vigorously defended. was sorry. When was the last time he said that to anyone? ���The plaintiff ���s expectation here must have been that the He lined up somebody else to take over her Simcoe-Grey defendants would be incurring substantial costs in the deriding: Kellie Leitch, a friend of Tony Clement. She���s being fence of this action. groomed now for a cabinet post this summer. ���At the same time, as I have just observed, there should be Guergis had enough. In late 2011 she sued, seeking $1.3 a reasonable expectation that costs would not be payable to million from Harper and everybody around him she be- multiple counsel putting forward an identical position,��� said lieved took part in getting her tossed out of Parliament. Hackland in explaining why his award was lower than the Guergis claimed conspiracy, defamation, intentional in- $228,000 originally sought by the Harper group. fliction of mental suffering, negligence, breach of fiduciary Harper and his people have nothing further to say. duty, breach of duty of good faith, and breach of confidence Guergis��� lawyer, Stephen Victor, says she will appeal the over her sudden removal from cabinet and the Conserva- decision. The case will be heard April 17 at the Ontario tive caucus in April 2010. Court of Appeal. The case was heard this past summer. As for Guergis and Jaffer, they have had a beautiful baby Guergis made herself out to be the victim of an elabo- since this whole messy thing started, bringing some mearate political conspiracy ��� like something out of the Prison sure of joy to their ruined lives. Break TV series ��� to tarnish her reputation and justify tossAs for Guergis, she went off to law school in Alberta in ing her out of cabinet. the fall. She had a good lawyer but still lost her case. And we don���t Law school? You���d think she would have had enough of know what she did wrong. the law by now. LT With that judgment, Harper could have left well enough alone, but when was the last time he did that? So he went ���Richard Cleroux is a freelance reporter and columnist on Parliaafter her for his legal fees. ment Hill. His e-mail address is richardcleroux@rogers.com. editor deFamatorY liBel oFFenCe still useFul However well intentioned, Alan Shanoff ���s call for the abolition of defamatory libel from the Criminal Code (see ���Time to abolish outdated defamatory libel offence,��� Feb. 11) is ill advised. It does not matter that the provision is rarely used. Our laws regarding treason are rarely used but serve an important purpose. Defamatory libel has nothing to do with the concept of fair comment. Rather, the offence can be equated to the communications equivalent of a vicious drive-by shooting. Invariably, the interest is to malign an innocent person. Shanoff ���s reference to the possibility of prosecutorial and judicial abuse of criminal defamatory libel would be valid if there was any historic case law to support it. I doubt that there is. The same Charter of Rights and Freedoms that affords citizens freedom of speech should provide the same level of protection for a person���s reputation. Surely, with the civil courts overcrowded, the remedy for those rare bona fide defamatory libel cases must not be a civil lawsuit. The anonymity of technology and the Internet facilitates cyber bullying. Try to get Google to remove something odious or egregious. It is expensive and almost impossible to achieve without the services of a lawyer. Recent successful prosecutions in Ontario have been purposeful. The courts quite properly have condemned the behaviour of those few people convicted of defamatory libel. For most of us, our reputation is the most important thing we have. The rare application of the defamatory libel provision of the Criminal Code has served us well. eric Cunningham Former mpp for wentworth north, 1975-84 Burlington, ont. Gender amendments to Ontario Human Rights Code fall short BY DEBORAH HOWDEN For Law Times W necessary and appropriate in that situation? Given the amendments to the code, it is likely the employer must accommodate the cross-dresser by allowing him to use the women���s washroom if he indeed identifies as a female. Section 24 of the code identifies exceptions to discrimination in so-called special employment circumstances. Under that section, special employment means employment in a religious, philanthropic, educational, fraternal or social institution or at an organization that is primarily engaged in servicing the interests of people identified by race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability. Also, the organization must employ only or give preference in employment to people similarly identified. Thus, if an institution that supports battered women will not employ men, that would in the ordinary course not breach a man���s right to equal treatment with respect to employment. Curiously, however, s. 24 does not list gender expression or gender identity as exceptions to unequal treatment in employment. This was obviously an unintended loophole and a clear omission. Again, the trouble is that the amendments to the code do not go far enough. For sure, the amendments to the code will have an impact on how employers choose to accommodate their employees when it comes to gender identity or gender expression. However, with the lack of clarification on the issue, there is huge potential for uncertainty and liability on the part of employers. LT u SPEAKER���S CORNER hen it comes to the two very different concepts of gender identity and gender expression, many scenarios are possible. For example, one can be transgendered, transsexual, intersexed, a cross-dresser or even androgynous. While western society has made huge inroads in accepting and accommodating people who do not fit neatly into traditional genders, the law has a tendency to lag. But now, at least in Ontario, the law has caught up ��� or has it? Last summer, the province amended the Ontario Human Rights Code to include gender expression and gender identity as prohibited grounds of discrimination. The code itself is remedial legislation that gives everyone equal rights and opportunities without discrimination in five distinct areas: employment, accommodation, contracts, membership in vocational associations and trade unions, and, lumped into one category, goods, services, and facilities. It���s employment accommodation that���s the focus of this article. One of the objectives of the code is to prevent discrimination and harassment in employment on the basis of various prohibited grounds, four of which are sex, sexual orientation, gender identity, and gender expression. And this is where the amendments may create uncertainty. The amending bill is called the Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression. What is significant is that, despite the bill���s title, it doesn���t fully define the terms gender identity and gender expression. According to the Ontario Human Rights Commission, gender identity involves a person���s ���intrinsic sense of self ��� and ���the sense of being male or female.��� Going with these definitions, gender identity would not include people who are transsexuals (those who have the sex organs or genitalia of one gender but who identify with another), cross-dressers (those who wear clothes of the opposite sex), transgenderists (those who live as a member of the opposite sex), and intersexed people (more commonly known as hermaphrodites or those who possess organs and genitals not clearly identifiable as belonging to one sex or the other). As far as employers are concerned, the amendments to the code leave many unanswered questions as to what constitutes the sense of being male or female. For example, do the amendments compel an employer to allow a woman ��� transgendered, transsexual or otherwise ��� to wear a miniskirt to work if it relates to her sense of being female? And would she have protection from discrimination under the code if she wished to wear a bikini top to a professional office environment? Although the amendments remain untried at this point, the way an employee dresses is arguably very much an expression of gender subject only to employer restrictions related to a bona fide occupational requirement. Another potential problem for the employer would involve workplace washroom facilities. In most circumstances, employers can reasonably accommodate transgendered individuals and transsexuals, but what about a male cross-dresser who only sometimes identifies as female and prefers to use the women���s washroom at the workplace? Indeed, what accommodations are www.lawtimesnews.com ���Deborah Howden is a lawyer and partner with Shibley Righton LLP in Toronto. She is a labour and employment law specialist who does extensive work with institutional clients.

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