Law Times

LAW TIMES / JULY 14/21, 2008 Human rights a different game overriding property rights and enforcing non-discrimination in publicly offered services by the private sector, especially in employment, real estate rental or purchase, and dining. Nowadays, human rights commissions are getting into an entirely different game, one that isn't a big part of their caseload but which in the long run could have a destabilizing effect on society as a whole. They play the racial/cultural consciousness card with the aim of suppressing speech and atti- tudes they dislike and closing off whole areas of human existence to critical examination. True, they supposedly still O handle racism in the offering of services, and on June 30 a whole new approach to this be- came law in Ontario. People who claim discrimina- tion will take their concerns direct- ly to a tribunal and be assisted in doing so by a new Human Rights Legal Support Centre, which will provide lawyers and paralegals to help complainants. To an outsider, it sounds an awful lot like a make-work proj- ect for lawyers (to which a lawyer acquaintance of mine said: "You make that sound like a bad thing") and from its description could be ripe for procedural abuse. But the other and much more problematic half of the Ontario Human Rights Commission's new mandate is the pursuit of systemic racism and the advo- cacy of the consciousness-raising required to end it. We have a template for this in the old commission's May report called "Fishing without fear: Re- port on the inquiry into assaults on Asian Canadian anglers," which the commission itself sees as an ex- ample of the work it will do in the transformed human rights system. It basically blames racial profil- ing by "mostly European or White communities" (the capital W is the commission's) for assaults on "Asian" fishermen, by which it presumably means Chinese, Viet- namese, and Koreans, since those are the Asian languages into which the report is translated. To the commission, racial profiling is a consequence of con- scious or unconscious racism, such as believing Asian fishermen do a disproportionate amount of area poaching. From there the white racist graduates to a "hate crime" when an "overt motive" is present. The commission trumpets 59 commitments from 21 organiza- tions and municipalities that have enlisted in its struggle — not to go after individuals guilty of assaults — but to raise the consciousness of all the white males in the area so that they'll be aware of their racism and correct it. Contrary reasoning, however, is applied by the commission in the case of Maclean's magazine's reprinting of the Mark Steyn thesis that Muslims come to the Western world as settlers who seek to impose their culture rath- er than immigrants who want to nce upon a time, hu- man rights commis- sions had to do with Queen's Park Inside By Derek Nelson fit in, and that in consequence, because of their numbers, they will inevitably transform Europe into a Muslim society. "Ascribing the behaviour of individuals to a group damages ev- eryone in that group," chief com- missioner Barbara Hall averred in the Maclean's case. One has to presume the dif- ference in the commission's viewpoint in the two cases is that, in the human rights hierar- chy, rural white male Ontarians are denied "protected" group status, while Muslims have it. In fact, everyone except het- erosexual white male Christians appears to be on the protection list. The commission (I use its language) lists Asians, aboriginals, African-Canadians, lesbians, gays, bisexuals, transgendered and inter- sexed individuals, Jews, Muslims, Arabs, those from South Asian communities, and women. With the commission's new mandate, we'll undoubtedly see much more of this broad brush condemnation of white males who dare to adopt opinions on a topic that does not conform to the com- mission's spin that anything nega- tive about a "protected" group is white male racism. It brings to mind social com- mentator Shelby Steele's astute ob- servation that, "Most any time race is given importance, positively or negatively, people are hiding from their true motivations. "In the age of racism, whites said blacks were inferior so as not to see their own desire to exploit them, their true motivation. "In the age of white guilt, whites support all manner of silly racial policies without seeing that their true motivation is simply to show themselves innocent of racism." Thus we have a general con- sensus in Ontario of the le- gitimacy of black pride, and black power, and Africa-centric schools, but the illegitimacy of white pride, white power, and Eurocentric schooling. To put it another way, and as the Asian fishing episode demon- strates, the objective of the com- mission and its ilk is the suppres- sion of racial consciousness among white males, but the raising of it among "protected" groups. And consciousness-raising seems to come with speech chill (see Maclean's) and such travesties as search-and-seizure without warrant. Better the commission had stuck to the original and worthy goal of protecting individuals from discrimination. Unfortunately, it prefers group social engineering. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@ rogers.com. COMMENT Surprise decision brings surprise results BY RONALD S. MINKEN For Law Times L ittle more then four months after the Supreme Court of Canada heard the appeal of Honda Canada Inc. v. Keays, the court's decision was released. The court had the op- portunity to alter the practice of both employment law and the common law in general. The largest punitive damages ever awarded to an employee had the possibility of being re- instated by the highest court in the country and the chance of a new tort of discrimination could have been created, allow- ing individuals discriminated against to use the court system as a means for remedy. Despite all of this possible change, a surpris- ing decision was reached. Kevin Keays worked for Hon- da for 14 years. In 1997, he was diagnosed with chronic fatigue syndrome and went on long- term disability until 1998, when his benefits were discontinued. Returning to work, Keays was placed in a disability program which entitled him to take days off work as long as he met two criteria: that the absence was due to his condition and he provide a doctor's note to Honda support- ing the reason for each absence. Abiding by these rules, Keays provided Honda with the corre- sponding notes. However, Honda became concerned at how often he was absent from work, as well as the lack of medical evaluation referred to in each doctor's note. In response to these concerns, Honda asked Keays to meet with a new doctor, who Honda had suggested. Keays' counsel advised him not attend such a meeting without an explanation as to what it would entail, which Honda had not provided. After rejecting the notion of the meeting many times, Honda terminated Keays. As a result of the termination, Keays sued Honda for wrongful dismissal. The trial judge decided in favour of Keays and awarded him 15 months' pay in lieu of notice, with an additional nine months notice due to the manner in which Honda had terminated him. Furthermore, an award of punitive damages was ordered in the amount of $500,000, designed to punish Honda for discriminat- ing against Keays. The Ontario Court of Appeal upheld the total award of 24 months, yet reduced the amount of punitive damages to $100,000. Honda appealed to the SCC. The court upheld the award of 15 months' pay in lieu of notice. However, this ruling was surpris- ingly distinct from the two courts below in regards to both the bad- faith and punitive damages. The court analyzed the four points on which the trial judge had based his finding of bad faith and came to the conclusion that such a finding was either without evidentiary support or consisted of overriding and palpable er- rors. According to the court, no evidence existed which indicated www.lawtimesnews.com that Honda had deliberately mis- represented Keays' and Honda's own doctor's medical views in re- gards to Keays' disability, or that Honda's doctor took a "hardball" approach towards Keays and his condition. Additionally, the trial judge made an overriding and palpable error by finding that Speaker's Honda's decision to end Keays' accommodation was a form of reprisal for Keays' retention of legal counsel. Rather, the accom- modation was stopped in order to confirm Keays' disability. Also, a further overriding and palpable error was made by the trial judge when he decided to consider Keays' disability during the post- termination period. The court stated, ". . . this was not compens- able under the Wallace [v. United Grain Growers Ltd.] umbrella be- cause there was no evidence that the disability was caused by the manner of termination." In regards to the trial judge and Court of Appeal's awards of punitive damages, the court de- cided that there was no act com- mitted by Honda that deserved such an award. The court cited Vorvis v. Insurance Corp. of British Columbia and Whiten v. Pilot In- surance Co. as follows: "This court has stated that punitive damages should 'receive the most careful consideration and the discretion to award them should be most cautiously exercised' . . . Courts should only resort to punitive damages in exceptional cases . . . The independent actionable wrong requirement is but one of the many factors that merit care- ful consideration by the courts in allocating punitive damages. An- other important thing to be con- sidered is that conduct meriting punitive damages awards must be 'harsh, vindictive, reprehensible and malicious,' as well as 'extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punish- ment.' The facts of the case dem- onstrate no such conduct." The court said in regards to the accommodation program requiring Keays to provide a note for each absence: "The dif- ferential treatment was meant to accommodate the particular circumstances of persons with a particular type of disability and to provide a benefit to them. It is apparent from the record that the program was designed to establish a continuous relation between management and treating phy- sician and monitor absences in order to establish in particular an expected rate of absences which would not give rise to disciplinary action. The suggestion that the program itself was discriminatory is not supported by the facts." This decision was far from what many had eagerly waited for. There was no shedding of an Corner precedent from 27 years ago which restricts human rights claims from being heard in the courts. Also, there was no example made of Honda to other employers in- forming them that each occur- rence of discrimination in the workplace will be responded to with an iron fist full of punitive and bad-faith damages. Rather, the court seemed to be content to remain encapsulated in old case law. So, what is to be made of this decision? Firstly, the court's deci- sion has brought to light the distinction and application of both damages for conduct of dismissal and punitive damages. The court stated: ". . . that courts, when allocating punitive damag- es, must focus on the defendant's misconduct, not on the plaintiff's loss . . . In this case, [if the facts had justified an award of punitive damages] the same conduct un- derlays the awards of damages for conduct in dismissal and punitive damages. The lower courts erred by not questioning whether the allocation of punitive damages was necessary for the purposes of denunciation, deterrence and retribution, once the damages for conduct in dismissal were award- ed. Be that as it may, we now have a clearer foundation to distinguish between damages for conduct in dismissal and punitive damages." Therefore, punitive damages will be based on "the defendant's misconduct" and damages "at- tributable to conduct in the man- ner of dismissal" will be based on the employee's actual loss, as in a tort damage case. Secondly, we now have a clarification from the decision for both employers and employees as to what guidelines are associ- ated with an employer's duty to accommodate an employee who is disabled and the employee's responding obligation. The em- ployer is required to perform a thorough investigation of the employee's disability and the em- ployee is required to cooperate fully with this process. In finding that Honda's acts were not worthy of damages for conduct in dismissal or punitive damages, the court has clarified what is acceptable conduct of an employer when accommodating an employee. Unreasonable re- quests by employers in an attempt to accommodate employees may result in employers constructively dismissing their employees, en- titling employees to notice along with potentially additional dam- ages due to the conduct of dis- missal where the employee's actual losses will be considered, as well as potential punitive damages as a re- sult of the employer's misconduct, providing the employer's actions are akin to the conduct contem- plated in Whiten and Vorvis. LT Ronald S. Minken is a senior lawyer at Minken & Associates Professional Corp., a Markham employment law boutique. His e-mail is rminken@ minken.com. Kyle Burgis and Sara Kauder assisted with this article. PAGE 7

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