Law Times

Page 4 September 14, 2015 • Law timeS www.lawtimesnews.com Lawyers worried about 10-year cap on tribunal appointments BY MARG. BRUINEMAN For Law Times ules limiting the term of ap- pointments of adjudicators to the Human Rights Tribunal of Ontario to 10 years have many within the legal profession worried they'll hamstring its efforts to efficiently carry out its mandate. Although the addendum to the gov- ernment appointees directive limiting the term of appointment to a regulatory or adjudicative agency to a maximum of 10 years became effective on Sept. 1, 2006, its impact is reverberating now, a decade after coming into force. For the HRTO, the brunt of that impact will come in 2018 and 2019 with half of the 50 vice chairs expected to leave, dropping the average years of experience to three years from six. "Our section certainly understood the intention behind the rule coming in," says Danny Kastner, an executive mem- ber of the labour and employment law section of the Ontario Bar Association. In bringing in the new rules, the gov- ernment was seeking to address the pos- sibility of inf luence and avoid stagnation. Other goals include having a diversity of perspectives, continuous refreshment of the appointee roster, and allowing others a chance to serve on tribunals. "The 10-year period allows an appointee to grow their skills, develop expertise, and seek other opportunities within adjudica- tive tribunals [or] regulatory agencies," says Michael Patten, a spokesman for the Trea- sury Board Secretariat. And, he adds, although individuals can only spend 10 years with one agency or tribunal, they can ap- ply to serve on another body. Despite the govern- ment's intentions, Kast- ner says there are unin- tended consequences that could result from the new rules. The OBA labour and employment law sec- tion's concern is that a limited term also means limited experience. And experience can make a difference between the effective and efficient operation of a tribu- nal and one that doesn't run quite as smoothly or quickly. "The adjudica- tor will be out of the tribunal at a time when adjudicators will just be hitting their stride," says Kastner. "Our view is the term limits do not strike the appropriate balance." An additional concern is that it will take longer to get matters heard and de- cisions rendered as well as the impact on the consistency of the decisions. "We're currently already dealing with quite a bit of backlog," says Nicole Simes of the MacLeod Law Firm. "If they're go- ing to potentially lose 50 per cent of the vice chairs, that number is only going to go up." She cites the HRTO's statistics that it takes 105 days on average to get a hear- ing date after making an application and an- other 126 days on aver- age for the decision to arrive. For Simes, those numbers look good compared to the real- ity she and her clients face. But from the me- diation side, the pro- cess seems to work well, something Paul Boshyk of McMillan LLP worries could suf- fer if adjudicators have to leave after having served for 10 years. "Will that well-oiled machine continue to run forward?" asks Boshyk. One of the worries is that the remain- ing vice chairs will have to take time away from the tribunal to train new adjudica- tors, something that could further slow things down, says McMillan's Adam Chisolm. Kathy Laird, executive director of the Human Rights Legal Support Cen- tre and a former vice chairwoman at the Human Rights Board of Inquiry and the Pay Equity Hearings Tribunal, says that although the current rule replaces an ill-defined one and her organization sup- ports the goal of rejuvenating the tribu- nals with a mix of experience and back- ground, it's still problematic. "It's a blunt instrument to use if your goal is to build a panel of adjudicators with different experience, different back- ground," she says. "If the 10-year rule re- sults in a majority of any tribunal going out the door at one time, that's not going to be a good thing." The discretion of who should serve should be in the hands of the chair, she suggests. According to statistics compiled by the Social Justice Tribunals Ontario, the Human Rights Tribunal of Ontario's service standard of offering a mediation date within 150 days 80 per cent of the time has an 88-per-cent success rate. At the same time, the goal of offering the first hearing date within 180 days 80 per cent of the time has only a 37-per-cent success rate. When it comes to issuing decisions, the tribunal's service standard is to pro- vide them for hearings of three days or less within 90 days 80 per cent of the time. The success rate on that standard is 71 per cent. For hearings longer than three days, the goal is to have a decision within 180 days 80 per cent of the time. The success rate on that standard is only 54 per cent. The report also indicates that the tribu- nal has been successful in reducing its case- load over three consecutive years to 2,994 in 2013-14 from 3,302 in 2011-12. LT NEWS Top court confirms two-part test for discrimination BY MARG. BRUINEMAN For Law Times n its rejection of an appeal from a Canadian pi- lot claiming racial discrimination by Bombardier Inc., the Supreme Court of Canada has clarified the threshold for discrimination and also warned Ca- nadian companies they can't blindly follow a judgment from a foreign authority. The top court's warning in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) that companies can expose themselves to discrimination claims perhaps should have been clear but it does serve as a good reminder, says Unifor lawyer Niki Lundquist. "You can't rely on someone else's discriminatory behav- iour justifying your own," she says. The case revolves around Javed Latif, a pilot born in Pakistan with Canadian citizenship who has been f lying since 1964. He obtained a U.S. pilot's licence in 1991 and has had his Canadian pilot's licence since 2004. Latif regis- tered for training at Bombardier's centre in Dallas, but with his request for security clearance by U.S. authorities denied, he couldn't receive the training from Bombardier under his U.S. licence. Bombardier also refused to train him at its other centre in Montreal. Latif filed a discrimination complaint with the Commission des droits de la personne et des droits de la jeunesse, which initiated proceedings with the prov- ince's Human Rights Tribunal alleging Bombardier had impaired the pilot's right to be free from discrimina- tion based on ethnic or national origin under Quebec's Charter of Human Rights and Freedoms. The tribunal decided there was discrimination and ordered Bombar- dier to pay damages. It also ordered Bombardier to not consider the standards of U.S. authorities in national se- curity matters when dealing with training applications from pilots under Canadian pilots' licences. But the Quebec Court of Appeal set aside that deci- sion on the basis that the tribunal couldn't find Bombar- dier had discriminated against Latif without proof that the U.S. authorities' decision contravened the Quebec charter. In supporting the appeal court's decision, the Supreme Court of Canada justices wrote: "In our opinion, the evidence available to the Tribu- nal — indeed the absence of evidence — was such that it could not reason- ably hold that there was a connection between Mr. Latif 's ethnic or national origin and the decision of the U.S. au- thorities, and therefore Bombardier's decision to deny Mr. Latif 's training request. As a result, it was not open to the Tribunal to conclude that Bombar- dier's decision constituted prima facie discrimination under the Charter. "However, we wish to make it clear that our conclusion in this case does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter. Our conclusion f lows from the fact that there is simply no evi- dence in this case of a connection between a prohibited ground and the foreign decision in question." It was the first time the court had heard a discrimination allegation arising from a decision of a foreign authority. The decision helps clarify the two-part test for discrimi- nation requiring the demonstration that there was adverse treatment linked to grounds prohibited under Canadian law, says lawyer Hugh Scher. "To the extent that a person seeks to assert a claim of dis- crimination contrary to human rights law in Canada, they must demonstrate on a balance of probability that there is adverse negative treatment and it is linked to prohibitive grounds such as race under the human rights code," says Scher. The significance here, he says, is that the Supreme Court emphasized in the first part of the test that demonstration of discrimination is necessary and, in the second part, that there's a connection. For Selwyn Pieters, who represented a Quebec-based in- tervener, the Center for ResearchAction on Race Relations, the test to establish a prima facie case of discrimination hasn't changed. The ruling "unanimously confirms the analytical approach to human rights legislation taken by the Ontario Court of Appeal in Peel Law Assn. v. Pieters," he says, referring to the two- year-old case in which he was one of the complainants alleging discrimination. The Bombardier case attracted the attention of six interveners wanting to ensure the test was uniform throughout Canada and that courts and tribunals could consider evidence from social science in adjudicating human rights cases. While Pieters believes the Canadian human rights system, when it comes to dealing with discrimination and harass- ment on grounds such as sex and dis- ability, is superior, he says that doesn't apply to how it deals with the sometimes-systemic nature of discrimination based on race. Pointing to a recent Ontario Human Rights Tribunal case, he says courts and tribunals sometimes miss the nu- ances of such discrimination and its impact on those affect- ed. He says that lack of consistency also exists at the appeal court level in Ontario, something that further solidifies the importance of the Quebec case. "The paucity of positive human rights decisions, particu- larly in respect to racial profiling and racial slurs, has led to a pessimistic view amongst some human rights litigants and applicant counsel on human rights tribunals and their abil- ity to effectively and meaningfully adjudicate human rights disputes and provide meaningful remedies for complain- ants," says Pieters. Although the Supreme Court accepted the threshold of a connection or factor instead of requiring causal grounds, Bombardier raises the question of how someone can obtain the necessary proof, says Lundquist. "Could he even have shown a connection? How do you get a foreign government to provide that?" she asks. LT 'The adjudicator will be out of the tribunal at a time when adjudicators will just be hit- ting their stride,' says Danny Kastner. R I The Canadian human rights system falls short when it comes to dealing with the systemic aspects of discrimination based on race, says Selwyn Pieters.

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