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Page 6 OctOber 20, 2014 • Law Times www.lawtimesnews.com COMMENT Wake-up call for mental health at work hortly after the Ontario Human Rights Commission re- leased its policy on mental-health disabilities earlier this year, along comes a Divisional Court decision that offers some useful guidance on the issue. On Sept. 29, the Divisional Court ruled on the Hamilton-Wen- tworth District School Board's appeal of a Human Rights Tribunal of Ontario decision ordering it to reinstate an employee who had suffered from an anxiety disorder related to her job as a supervisor dealing with asbestos. According to adjudicator Kaye Joachim's 2013 decision on the remedy in the case, the employee, Sharon Fair, had developed a gen- eralized anxiety disorder due to the stress of her job and her fear that, in making a mistake about asbestos removal, she could be liable for a health and safety breach. The board terminated her in 2004 after she had been on disability leave since 2001. Key to Joachim's decision was the finding that there were two suitable jobs Fair could have filled as early as June 2003. While the board suggested it wasn't going to fill one of the jobs due to finan- cial reasons and the other one wasn't really vacant, Joachim found it never had any real intention to accommodate Fair. Besides documentary evidence to that effect, Fair testified about a meeting in which the controller of plant operations told her she was either fit to return to her former position or she wasn't suitable to Mining company lawsuit shows need for international law reform By SARAh MolynEAux AnD ShIn IMAI For Law Times n a case that once again demonstrates the lack of international legal protections, a civil suit filed against Tahoe Resources Inc. alleges the Vancouver- headquartered mining company is liable for injuries sustained by seven Guatemalan men at a protest in April 2013. The suit, filed in Vancouver this June on behalf of the men, alleges that a private security firm engaged by Tahoe shot protesters at close range and caused serious injuries. Six of the plaintiffs are farmers while the sev- enth is a local student who was a minor at the time of the incident. Tahoe had received an exploration licence for its Escobal mine near the Guatemalan municipality of San Rafael Las Flores last year. Tahoe's security manager, Alberto Rotondo Dall'Orso, is facing criminal charges in relation to the shootings. Authorities arrested him as he attempted to leave Guatemala in what they interpreted as an at- tempt to evade capture. The plaintiffs allege he ordered the shootings that caused their injuries. At the time of publication, neither the criminal charges nor the civil claims have been proven in court. Following the shooting of the protesters, the Gua- temalan government imposed a state of emergency in neighbouring municipalities, including those that had voted against the mine. More than a year later, relations between Tahoe and the community do not appear to have cooled. Local activists blame the April 13, 2014, murder of 16-year- old youth leader Topacio Reynoso on the conf lict. Reynoso's father was shot and seriously injured in the same incident. This is the first case of its kind in British Columbia courts. However, there have been similar lawsuits in Ontario and Quebec with three cases alleging human rights abuses by Hudbay Minerals Inc. set to proceed to trial in Toronto after an Ontario Superior Court judge rejected the company's move to dismiss the mat- ter for lack of a duty of care owed to the plaintiffs. The case shows the high cost of a lack of consent. Despite Tahoe's assertion that it has local support, more than half of San Rafael Las Flores communities and a majority of voters in five neighbouring munici- palities opposed the mine. According to a study released by the Harvard Ken- nedy School's corporate social responsibility initiative this year, the protests that followed Tahoe's licensing should come as no surprise to corporations operating in the extractive industry. For mining companies, the failure to obtain community consent and social licence at an early stage can result in significant losses. Protests cause costly delays as well as reputational harm that make it difficult for companies to recruit top talent, sell mines or work with other communities in the future. The case, therefore, points to need for accessible accountability mechanisms. Given the seriousness of the complaints lodged by mining-affected com- munities and the substantial losses experienced by companies that fail to foster good relations with people living near their projects, the Canadian extrac- tive industry is in desperate need of an accessible ac- countability mechanism. Meanwhile, in the absence of legislation explicitly permitting lawsuits or offering an effective alternative to the court system, those affected by Canadian cor- porations have increasingly turned to domestic courts for recourse. Others turn to international bodies, such as the United Nations human rights committee that recently passed a draft resolution to work towards the development of a legally binding international human rights instrument to regulate transnational corpora- tions and other business enterprises despite interna- tional law's traditional focus on state actions. As former Supreme Court justice Ian Binnie ex- plained at a Canadian Bar Association and Depart- ment of Justice event in 2008, "You cannot have a func- tioning global economy with a dysfunctional global legal system: there has to be somewhere, somehow, that people who feel their rights have been trampled on can attempt redress." LT uSarah Molyneaux is a volunteer lawyer with the Jus- tice and Corporate Accountability Project. Shin Imai is a professor at Osgoode Hall Law School and director of the project. u SPEAKER'S CORNER ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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. 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Arshy Mann Copy Editor . . . . . . . . . . . . . . . . . . . . . . . . . James Kang CaseLaw Editor . . . . . . . . . . . . . . . . . . . Lorraine Pang Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Law Times 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 • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth come back to the department at all. As the Divisional Court noted in dismissing the school board board's appeal, reinstatement is an unusual remedy in human rights cases. But as the court found, the tribunal does have broad au- thority to ensure compliance with Ontario's Hu- man Rights Code. And with the commission hav- ing reinforced employers' duties to accommodate disabilities related to mental health, it's certainly timely for the court to be weighing in on the issue and making it clear that their obligations can in- clude reinstatement. Given the need to make those discriminated against whole, reinstatement to a suitable alterna- tive job is a reasonable option when it comes to remedies in human rights matters. — Glenn Kauth I S

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