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Page 6 January 12, 2015 • Law Times www.lawtimesnews.com COMMENT Let the debate begin ith a federal election on the horizon, it's worth tak- ing a look at what the parties are saying about justice policy. Given their record in power over the last nine years, it's clear the Conservatives are likely to continue on the track they've set. While the government's approach has morphed from introduc- ing major crime legislation to more targeted private member's bills aimed at very specific issues — such as the recent bill C-639 that sets mandatory minimums for offences involving critical infrastructure — it's likely to maintain its vow to get tough on crime as a signature policy. As for the Liberals and the NDP, their positions so far suggest a gradual softening of that approach. That probably doesn't mean a significant change as reversing the government's crime crackdown wouldn't help them win a lot of votes, but the opposition parties have said things many in the legal community would like. "There is a critical role for judges in determining sentences, and mandatory minimum sentences should be restricted to serious and violent of- fences only," the Liberals say in describing their position on justice and public safety. The NDP's policy book also refers to adapting sentencing rules to "allow, under judicial discretion, for more severe sentences for violent crime." Similarly, the two opposition parties would veer from the govern- ment's approach to drug policy. The Liberals, who have called for le- galization of marijuana possession, say prohibition doesn't work. The NDP is calling for decriminalization of marijuana possession as well Restore reinstatement as default human rights remedy By DAviD hArriS For Law Times he issue of reinstatement under the Ontario Human Rights Code has been the subject of fresh attention given the recent decision of the Divisional Court in Fair v. Hamilton-Wen- tworth District School Board that upheld a Human Rights Tribunal of Ontario ruling ordering reinstatement and 8-1/2 years of back pay. For many years, reinstatement had been the forgotten remedy of the HRTO. Ironically, in the early years of the code's interpretation from 1975-99, reinstatement was the default remedy. The first decision made by a board of inquiry under the 1981 Human Rights Code was that of Cameron v. Nel-Gor Castle Nursing Home. The complaint involved a person suffering from a medical handicap. The complainant had unsuccessfully sought employ- ment as a nursing aide with a nursing home. Having found a breach of the code, the board considered the rem- edy and noted the complainant hadn't requested an order for an offer of employment as she had a job elsewhere. Nevertheless, the board made such an order. It concluded such relief should be "the primary remedy to a Complain- ant who has been denied her right to equal treatment with respect to employment because of handicap." Similarly, the board of inquiry in the March 1987 de- cision in Karumanchiri v. Ontario (Liquor Control Board) found in favour of the complainant and ordered his eleva- tion to a higher-level position. In its 1984 decision in Mark v. Porcupine General Hos- pital, the board of inquiry emphasized reinstatement as the prime remedy: "As I emphasized in Cameron . . . the prime remedy in an 'employment case' where a complain- ant has been denied her rights to equality of treatment, is an order under paragraph 40(1)(a) directing that an offer of employment be made. The remedy provisions should be construed liberally to achieve the purposes and policies of the legislation. . . . An overriding objective of the rem- edies is to achieve restitution: that is, the eradication of the harmful effects of a respondent's actions on the complain- ant, and the placing of a complainant in the same position in which she would have been, had her human rights not been infringed by the respondent." In Ontario (Human Rights Commission) v. Ford, the Ontario Court of Appeal reversed the reinstatement award made by the board. The initial order granted by the board of inquiry in December 1996 in Naraine v. Ford Mo- tor Co. of Canada is nonetheless instructive of the issues decision-makers are to consider in such a circumstance. The board noted that arbitral jurisprudence had de- termined that "so long as the employment relationship appears to be viable, reinstatement orders will issue" and further observed that the remedial powers in the code were similar to those given to labour arbitrators. The board also noted that in the arbitral case law, reinstatement orders are the norm even where the par- ties may have exhibited a long history of interpersonal tension and confrontation. The board also made an order that the reinstate- ment process would be subject to guidelines issued by it in order to minimize conf lict in this process. The above analyses weren't subject to adverse commentary by the Court of Appeal as it set aside the reinstatement order for other reasons. In her dissenting opinion in the Supreme Court of Canada decision in McKinney v. University of Guelph, the late justice Bertha Wilson voiced a strong view in support of reinstatement as a remedy in an age discrimination case. She noted the specific factors of the age of the plaintiffs, the particular prejudice suffered by them, and the need to redress the wrong. The majority held against the plaintiffs in the action and hence didn't address the issue of remedy. But with five opinions in the case, only Wilson's dealt with the issue of the appropriate remedy. She stated her logic in favouring reinstatement of the plaintiffs. The modern administrative decisions are bereft of any acknowledgment of the jurisprudence set out above. They haven't referenced the cited decisions either in support of or opposition to them nor have they accepted, rejected or distinguished them in their recent analyses pondering the award of reinstatement. The words that described an order of reinstatement as the prime remedy have somehow, for unknown reasons, fallen by the wayside. But reinstatement remains a pow- erful remedy, particularly given the presumptive award of arrears of wages to its effective date. LT uDavid Harris, a former lawyer, is publisher of Employ- ment Law Books (e-mploymentbooks.com) as well as au- thor of Wrongful Dismissal, published by Carswell. u SPEAKER'S CORNER ©2015 Thomson Reuters Canada Ltd. All rights reserved. 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It's hardly inspiring stuff and it certainly would be good to get more details on exactly what the parties would do to enhance judicial discretion. Are there particular laws where they would restore more judicial leeway? At the very least, the parties should outline in detail at least a few key areas where they'd make changes. Justice policy is hardly a key driver of elections — with the partial exception of the Con- servatives' use of it to boost support from its core supporters — but it's an important aspect of what governments do. Let's hope it forms a significant part of the debate this year. — Glenn Kauth T W

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