Law Times

Page 6 June 3, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Self-rep victorious over town prayer D espite rising concerns over unrepresented litigants, one of them, Penetanguishene, Ont., resident Henry Freitag, scored a victory after leading his own case against his local council's recitation of a non-denominational prayer. On May 23, the Human Rights Tribunal of Ontario ordered the Corporation of the Town of Penetanguishene to stop reciting the prayer at the beginning of council meetings. Freitag, a Holocaust survivor who identifies as a non-Christian, argues the practice discriminates against him even though the council doesn't oblige people to rise and participate in it. In fact, it stopped reciting the Lord's Prayer several years back after Freitag launched a challenge based on the Charter of Rights and Freedoms that went all the way to the Ontario Court of Appeal in 1999. The town introduced the non-denominational version instead. Freitag argues even the new prayer is troubling because his decision to remain seated exposes him as a non-believer to others in the council chambers and leaves him excluded and feeling like an outcast. But interestingly, other cases that have dealt with non-denominational prayers similar to the Penetanguishene one have found they didn't violate s. 2(a) of the Charter. As HRTO vice chairwoman Leslie Reaume noted, the Superior Court based such a finding in Allen v. Renfrew (Corp. of the County) on the fact that the Charter itself refers to the supremacy of God. Moreover, the court noted the "broadly inclusive" nature of the prayer at issue in Allen. In fact, the prayer in that case was similar to one used in the House of Commons. But ultimately, Reaume noted a key difference in the cases: The current one involves a challenge under the Human Rights Code while the previous matters involved the Charter. "No such reference exists in the code," she wrote in reference to the supremacy of God indicated in the Charter. In a thoughtful analysis, Reaume found that despite its non-denominational character, "it would be reasonable to conclude that the current town prayer is derived at least in part from Judeo-Christian values." So Freitag, who's been fighting this issue for years, has won once again. It wasn't an obvious decision to come to given the previous court findings and the competing rights at issue. But ultimately, Reaume noted that while some council members might have strong religious leanings, it's not necessary to accommodate their personal beliefs while acting in their roles as public officials. That's reasonable, especially given the alternatives such as a moment of silence that could accommodate both believers and non-believers. So good for Freitag for remaining steadfast. As other HRTO cases show, he's somewhat of a legal provocateur who has launched multiple complaints with varying success (see the applications dismissed on April 4 in Freitag v. Penetanguishene (Town)). But in this matter, he succeeded in making his point on his own. — Glenn Kauth Close legal loopholes to ensure efficient transit projects I n the private sector, open competition is the preferred option to ensure bidders do their utmost to present a fair price. With $2 billion a year in transit spending on the table, you'd think governments would want competitive bids, especially if they're already crying poor and testing the dangerous waters of higher tax burdens. Unfortunately, as it stands not every Greater Toronto Area contractor can bid on the Big Move transit extravaganza because Toronto and some other jurisdictions are closed shops. The issue dates to a 2009 ruling by the Ontario Labour Relations Board in Independent Electricity Market Operator v. Canadian Union of Skilled Workers on ss. 126 and 127 of the Ontario Labour Relations Act. The issue is over what constitutes a non-construction employer. The ruling has had the effect of declaring school boards and municipalities in areas like Toronto and Hamilton, Ont., as construction employers and requiring them to deal only with contractors with collective agreements with specific unions. Law Times Health Services and Support — As Hamilton-based labour lawyer Stephen McArthur Queen's Facilities Subsector Bargaining Association v. British Columbia of McArthur Vereschagin & Park ruling in which the Supreme Brown LLP explains, the DiCourt of Canada recognized visional Court overturned the a constitutional protection 2009 decision and the Ontario for collective bargaining. But Court of Appeal dismissed a this time, it will also have to subsequent appeal. The Suconsider the Ontario Court preme Court of Canada also of Appeal's decision on the isdeclined to hear the matter. sue. How the labour relations But the ruling lives on in board deals with the Waterpractice. Last December, two Ian Harvey loo application is significant. Region of Waterloo, Ont., employees who were members of the Cana- With $34 billion in spending on transit dian Union of Public Employees Local lines planned over the next decade or so, 1656 were assigned on a Saturday to build some groups claim the issue could cost a shed. That day, they signed cards to join hundreds of millions of dollars due to the United Brotherhood of Carpenters limited competition. With Premier Kathleen Wynne and and Joiners. With two workers on site, it was a 100-per-cent vote even though they NDP Leader Andrea Horwath beholden belonged to a local with more than 200 to organized labour, Kitchener-Conesmembers. The carpenters have since filed toga Conservative MPP Michael Harto have the region declared a closed shop. ris has tabled a private member's bill to McArthur says the labour relations clean up the language. Theoretically, it may not be necessary board will have to focus again on the issue of non-construction versus con- since, as McArthur points out, the Court of Appeal decision throws the matter back to struction employers. At the time, he said, it relied on the the labour relations board. On the other Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . 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It's all evidence of the lack of attention to detail that has been a signature of this government. After squandering billions on cancelled gas plants, all-day kindergarten, eHealth Ontario, and Ornge, Wynne is now turning to new taxes to fund transit. It would be more politically astute, however, to look at all program spending and prioritize a strategy accordingly using all of the tools available such as cutting costs before seeking new revenues. LT uIan Harvey has been a journalist for 35 years writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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