Sometimes the Government Cannot Defend Itself

On January 31, 2013, Fiona Johnstone won her discrimination case against the federal government at the Federal Court (Canada v. Johnstone). Many legal experts expect that the government will not appeal the decision even though it has the potential to adversely affect every employer in Canada. In this case, the government has failed to fully defend its own interests and has thereby failed to protect the interests of other affected Canadians.

Johnstone complained to the Canadian Human Rights Commission in 2004 because she was unable to maintain full-time employment status due to her rotating shift schedule and ensuing difficultly securing childcare. Without full-time employment status, she was ineligible for workplace benefits. The Canadian Human Rights Tribunal (Tribunal) found that due to this ineligibility, Johnstone was the victim of an employment policy that discriminated against her on the basis of family status—i.e. having children requiring childcare.

The Federal Court affirmed the Tribunal’s decision that Johnstone’s childcare schedule should have been accommodated by her government employer, the Canadian Border Service Agency (CBSA). Effectively, the decision means that Johnstone has a right to benefits and a job that fits the time constraints of her personal life. It also demonstrates that both Johnstone and the court expect others—in this case, Johnstone’s employer and fellow employees—to shoulder some of the burden of Johnstone’s life-choices.

Robyn Benson, head of the Public Service Alliance of Canada, called this ruling “a huge win for Canadian workers with family obligations”, and that “it is now clear that employers must carefully consider each and every family status accommodation request and accommodate [those requests] short of undue hardship”.

It is unsurprising that organized labour would gleefully endorse this ruling—it greatly expands employer obligations to employees. But if Benson’s assessment proves accurate, employing young workers (particularly women) with family obligations will become more complicated and costly. This is why this decision will ultimately backfire and not have the desired effect of preventing future discrimination because instead of protecting the interests of young workers with family obligations, this ruling encourages employers to find subversive and clandestine means to ignore the job applications and advancement requests of otherwise qualified young workers since hiring and promoting those workers is now associated with greater risk and higher costs.

What has been the government’s response? In cases like this, the government cannot be trusted to fully defend its own interests in court because it has an insufficient incentive to put up a good fight. Moreover, lacking sufficient incentive, the government may mount a less than rigorous defence because the financial burdens associated with an unfavourable court decision are ultimately borne by the taxpayers.

In defending its interests against Johnstone’s human rights complaint, the government advanced three arguments. First, that the term “family status”, as used in the Canadian Human Rights Act, should not be construed to include childcare obligations. Second, that Johnstone had not satisfied the prima facie test for discrimination. And third, that the tribunal lacked the authority to order the remedies it awarded to Johnstone. These arguments—although interesting to lawyers—do not truly strike at the heart of the matter, especially from a private employer’s perspective.

The government did not argue that Johnstone has no legal right to receive workplace benefits, that human rights legislation should not be used to force others to bear some of the costs of Johnstone’s personal life, that Johnstone was requesting preferential treatment, or that a victory for Johnstone would be a setback for employees with childcare obligations. Although each of these runs contrary to existing and established precedent, private employers had an interest in these arguments being advanced in court.

Of the arguments the government did advance, none addressed whether human rights legislation can or should provide the basis for a positive rights claim, or, in other words, whether the legislation could be used to force a defendant to expend his own resources to provide some good or service to the claimant. No where did the government argue that human rights legislation should not be used as a means of transferring the costs of an individual’s chosen lifestyle to other members of society—in this case, from Johnstone to her employer, her fellow CBSA employees, and ultimately, taxpayers.

A private employer would have defended himself vigorously against Johnstone’s complaint because that employer would directly bear the financial burden of losing the case. The court’s decision means that every employee with childcare obligations in circumstances similar to Johnstone’s must receive accommodation from employers short of undue hardship. This greatly complicates an employer’s task of generating an employee work shift schedule, as a particular segment of employees have effectively been given trump cards permitting them to avoid working undesirable shifts. Even more, this decision not only restricts employer freedom, it also has a negative impact upon employees who do not have childcare obligations since it is these employees who will be scheduled to work the undesirable shifts.

But the government does not bear its own financial burdens the way that a private employer does. A ruling, regardless of the result, would have no direct impact upon the financial bottom-line at the CBSA since it is operated by the government and funded by taxpayers. Further, since it is the government’s legislation that enabled Johnstone to make a complaint, government lawyers were unable to argue that the law is unconstitutional, poor policy, or that it produces absurd results. In other words, not only did the government lack incentive to defend itself fully, it may have had an interest in advancing an incomplete defence to preserve its own legislation.

There are other examples of when the government cannot mount a rigorous or complete defence. On April 26, 2010, five applicants sued the Canadian and Ontario governments for failing to develop an effective housing strategy to deal with “inadequate and high-priced housing” (Tanudjaja v. Canada). The applicants are advancing a positive rights claim asking the courts to force taxpayers to fund their lifestyles. The Attorneys General of Canada and Ontario have filed motions to dismiss the application. And like the Johnstone case, should this application proceed, both government defendants will be incapable of mounting a complete defence.

For example, one argument unavailable to the governments’ lawyers is that the governments’ own policies and regulations are the primary cause of inadequate and high-priced housing. Economists Edward L. Glaeser, Joseph Gyourko, and Raven E. Saks answer the question posed by the title of their own paper, “Why Have Housing Prices Gone Up?”, with,

“…the evidence points toward a man-made scarcity of housing in the sense that the housing supply has been constrained by government regulation as opposed to fundamental geographic limitations.”

And as long-time Governor of the Reserve Bank of New Zealand, Donald Brash said in his introduction to the 2008 Demographia survey,

“…the affordability of housing is overwhelmingly a function of just one thing, the extent to which governments place artificial restrictions on the supply of residential land.”

Although this may be a controversial proposition in the discipline of urban planning, notice that no government that already places “artificial restrictions” on residential land supply could defend itself by advancing Brash’s argument in court. To do so would be to undermine its own interventionist programs. Instead, in the Tanudjaja application, the Federal and Ontario governments will be forced to justify their levels of interference in the housing market rather than address what Brash thinks is the root of the problem.

Of course, this will suit the five applicants’ positive rights claim well. As long as the arguments before the court concern only the adequacy of the governments’ housing policies and not whether governments should interfere in the housing market, the debate will not address the fundamental problem—that “artificial restrictions” drive-up housing costs. The prevailing assumption shared by all parties to the Tanudjaja application will be that government interference in the housing market is justified and perhaps necessary. No one will suggest that the court undergo a thorough examination of how government intervention creates housing shortages and high prices, despite that it would be in the interests of taxpayers to do so.

The Johnstone and Tanudjaja cases are excellent examples of litigation where the government has an insufficient incentive to defend itself rigorously and completely. In both cases, the government is defending itself against a positive rights claim. In every positive rights claim advanced in court, the claimant is asking that his or her actions be indemnified by the defendant. When such a claim is made against a private defendant, that defendant has a significant interest in defending himself since he will bear the costs of losing. But this is not true for governments.

Governments do not bear the financial burdens associated with an adverse court decision in the same way that a private defendant does. When a positive rights claim is successful against a government defendant, the costs associated with that unfavourable ruling are dispersed across a broader segment of society and ultimately borne by taxpayers (for another example, see Moore v. BC). In essence, the government merely functions as a conduit passing on to others any new burdens it receives.

There are two obvious problems resulting from this. 

First, when the government is defending itself from a positive rights claim, taxpayers have an interest in the outcome because ultimately they will have to bear the cost of an unfavourable decision. If the government—for whatever reason—fails to fully and completely defend itself, taxpayer interests have not been duly represented before the court. 

And second, since every court decision has a precedential value, as similar adverse decisions accumulate over time, the body of case law will become more and more skewed in favour of a claimant advancing a positive rights claim.

This piece was first published by the C2C Journal April 23, 2013.

The Human Rights Industry Harms Those It Professes to Help

A recent Human Rights Panel decision from PEI demonstrates perfectly how the human rights industry harms those that it professes to protect.  You can read the decision here.

Alison McKinnon started a new job at the Inn on the Hill on September 20, 2010, and was fired less than a month later during her probationary period because her work was unsatisfactory.


BUT WAS IT DISCRIMINATION?

On October 18, 2010, McKinnon let her employer know that was pregnant. Forty minutes after acknowledging the pregnancy, McKinnon was given two weeks’ notice. McKinnon refused the two additional weeks’ work and complained to the Human Rights Commission of PEI claiming that she had been discriminated against due to her pregnancy.

At first, these circumstances may seem to indicate discrimination, but there are two significant intervening facts. First, a week before October 18, McKinnon’s employer had discussed firing her with senior staff and decided that her employment was to be terminated. McKinnon’s pregnancy was not a relevant factor because the employer did not know about it. In fact, her employer planned to fire her on October 17, a day earlier, but found no convenient time to do so. Second, employment law recognizes that employers have the right to fire employees without cause or consequence during their probationary periods. This is because employers are particularly vulnerable when they hire new employees. New employees are less productive and tend to cost more. 
The Human Rights Panel awarded McKinnon $15,206.00 of her former employer’s money even though it accepted that there was no intention to discriminate. Ignoring the law on probationary periods, the Panel held that new employees are in a vulnerable position and that McKinnon’s dismissal had a discriminatory effect on her.

The distinction between intention and effect is the key to understanding this decision. You can be found guilty of discrimination even if you didn’t do anything that was discriminatory. It seems as though everyone in the human rights industry thoughtlessly accepts this oddity along with the claim that human rights law is remedial and not intended to punish.

No one can honestly believe that a $15,206.00 fine levied against an individual is not punishment. According to the Merriam-Webster online dictionary, punishment is to impose a penalty for a fault, offense, or violation. When someone complains about you to a human rights commission, that commission assesses whether your actions amount to discrimination. If they do, the commission will order you to pay money to the one you discriminated against. This scenario perfectly satisfies the dictionary definition of punishment, and no amount of obfuscation can change that brute fact.

It is equally a farce that the human rights industry maintains that human rights law is remedial. Remedy implies that someone failed to satisfy their duty to you. And where there is no duty, there can be no remedy. If your neighbour’s tree falls on your property and damages your fence, the law permits you to recover sufficient damages from your neighbour to return your fence to its previous undamaged state. Remedy is granted because your neighbour failed in his duty to prevent his tree from causing you loss.


WHY NOT STOP HIRING YOUNG WOMEN?

If human rights law were truly remedial and non-punitive, McKinnon’s complaint should have been dismissed.

Decisions like this make employers less willing to hire young female employees. If a new male employee proves unsatisfactory, he can be fired without a second thought. But if a new female employee proves unsatisfactory, employers better hope that she is not pregnant. Even though discriminatory hiring practices are illegal, decisions like this encourage employers to simply look passed the job applications of qualified females—or any applicant that might make a human rights complaint. If no one will ever know, employers will always choose to hire the employee that comes with less risk.

And that’s the core of the problem. Not only does the human rights industry ignore the common sense meaning of words, it subtly harms those that it professes to help. By giving McKinnon $15,206.00 of her former employer’s money, the PEI Human Rights Panel is encouraging employers to find subversive ways to avoid hiring young women.

This piece was originally published by Troy Media in February 2012.

Assuming makes a What out of You and Me?

In Hans Christian Andersen’s tale, “The Emperor’s New Clothes”, the Emperor was duped, his subjects were duped, and the only person willing to give an honest appraisal was a little child. “He isn’t wearing anything at all”, the child said. Sometimes it takes an outside opinion to fracture the edifice of familiar but unfounded patterns of thought.

This is precisely what a three-member panel of the Ontario Divisional Court has done in Pieters v. Peel Law Association.

The Peel Law Association manages a library and lounge in the Brampton Courthouse. Only lawyers, articling students, and law students are permitted to access the facility. Selwyn Pieters, a black Toronto lawyer, was asked by librarian Melissa Firth to provide identification demonstrating that he was a lawyer. Pieters felt offended, accused Firth of “racial profiling”, and complained to the Ontario Human Rights Commission, asking for $25,000 because his feelings were hurt.

Eric Whist, of the Human Rights Tribunal of Ontario, decided that Firth had discriminated against Pieters and awarded him $2,000 for injury to “dignity, feelings and self-respect”. In the decision, Whist held that Pieters had proved a prima facie case of discrimination and placed the onus on Firth to demonstrate that her actions were not motivated by race or colour. But Whist was too quick to find discrimination where there was none.

Since the 1985 Supreme Court of Canada (SCC) decision in Ont. Human Rights Comm. v. Simpsons-Sears, a prima facie case has meant “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent.”

The resulting structure of a human rights complaint is simple. The complainant must convince the decision-maker that there is enough evidence to establish that he has suffered from a discriminatory act. After this, the respondent bears the onus of convincing the decision-maker that the impugned act was not discriminatory. But on a careful read, Simpson-Sears is ambiguous – it lacks precision – regarding what is required to convince a decision-maker of a prima facie case.

In the 2007 McGill University Health Centre decision, the SCC cautioned that “not every distinction is discriminatory”. Justice Abella reasoned that a complainant will not be successful merely because he belongs to a protected group and he was subjected to some act that negatively impacted him. There must be some link, or nexus, between membership in a protected group and the allegedly discriminatory act.

It is the nature of this link, or nexus, which was addressed by the court in Peiters v. Peel Law Association, specifically whether this nexus is one of correlation or causation. In its unanimous decision, the court held that a complainant must do more than identify himself as a member in a protected group and point to an act that negatively impacted upon him. A complainant must establish a causal link. In other words, correlation is insufficient to prove a prima facie case of discrimination.

This decision gives lawyers a precise and practical statement of the law – discrimination cannot be assumed, it must be proved. There must be “a causal link or nexus between the distinction that imposes a disadvantage and a prohibited ground”. Finding otherwise would effectively immunize individuals belonging to protected groups from any acts that negatively impact upon their interests.

If Pieters is right – and it surely is – there may be a good number of human rights decisions that are wrongly decided. The mere correlation of membership in a protected group and an allegedly discriminatory act should not be sufficient to establish a prima facie case.


This piece was originally published by Troy Media in March 2012.