Mallory Hendry is associate editor for Canadian Lawyer. Mallory is dedicated to delivering the latest news in legal education across Canada. She contributes to both print and online content.
|Robert Lee, counsel for the plaintiffs, says he’s happy about the decision, but he anticipates the government will launch an appeal.|
On Feb. 10, the decision in LC v. Alberta was released, the latest in a string of cases dealing with claims that the government in that province — in particular, its child services branch — failed to file care plans in a timely way or, in some cases, at all for children in government care under temporary guardianship orders.
Lee says his reaction to the decision is mixed.
“On the one hand, I’m happy, but on the other hand, this has gone on already so long that it’s so tiring. It’s not finished. I expect that there will be an appeal and that’s the whole problem with this case — the huge disadvantage that the plaintiffs face against a government.”
Justice Robert Graesser wrote in the decision that he had “provisionally certified this as a class action proceeding” and that the class action was split into classes — the child class and the parent/guardian class. Advance costs were awarded in this decision to the child class.
Lee is already facing an appeal by the government on the class action certification, calling the string of cases an ongoing war.
“I started suing child welfare in 1998,” he says, noting that he’s not even a class action lawyer — he’s a sole practitioner who took on a few cases that ended up turning into class actions. “I might retire before this case is finished. That’s the reality. And that’s why advance costs are so important — the governments can drag these things out forever and ever and ever. The lawyers need to be able to fund themselves while the case goes on.”
Lee adds that if the government is essentially paying for the case once an advance costs order is made, it “totally changes the dynamics of the lawsuit.”
“Now they don’t have the financial advantage anymore,” he says. “They can’t grind the plaintiff into the ground.”
Lee says this is one of the first times advance costs have been awarded in a class action setting, and it’s an important decision because he sees a rise in class action lawyers turning to litigation funding companies and, “frankly, from my perspective, I don’t think that’s a healthy alternative for our legal system and for plaintiffs.” He argues that advance costs mean the well-funded defendant loses the economic advantage that causes a procedural advantage.
“Advance costs is a proper remedy where a litigant can’t get a lawyer to do the case, because these defendants go into this scorched-earth approach where they throw all their resources into trying to stop the case from proceeding,” Lee says.
Advance costs is a remedy that exists in our legal system, he says, and the application has to meet three tests as laid out by the Supreme Court of Canada. In British Columbia (Ministry of Forests) v. Okanagan Indian Band the court held that “the power to order interim costs is inherent in the nature of the equitable jurisdiction as to costs, in the exercise of which the court may determine at its discretion when and by whom costs are to be paid.”
Later, in Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency) and in R. v. Caron, the SCC spelled out the three requirements needed for advance costs to be ordered. In this case, Graesser wrote out the three-prong test:
- The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made.
- The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be fortified just because the litigant lacks financial means.
- The issues raised transcend the individual interests of the particular litigant, are of public importance and have not been resolved in previous cases: Okanagan at para. 40.
Though the case law calls advancecosts “an extraordinary remedy” and necessitates “sufficiently special” cases in order to apply, Lee says the courts generally use it in trust cases or in matrimonial cases where there’s kind of a spousal fiduciary duty, and he argues that child welfare should be viewed similarly as a special category since the government owes the children a fiduciary duty.
“Advance costs are appropriate in almost every child welfare case and I’m confident in almost any case you will find the criteria set by the SCC in Okanagan and Little Sisters — it’s met.”
While Graesser approved the advance costs, he did not set an amount. “The amount … will be determined upon receiving additional submissions,” he wrote in the decision. Lee had sought coverage for his budget of $1,774,537.50, but he says the judge said he was “not prepared to approve a budget in that magnitude.”
Lee says that even though he has the costs order, and “as a lawyer, academically, professionally, I’m so proud of this decision,” which he calls precedent-setting, he’s been fighting this battle for so many years and the piece of paper doesn’t help him pay his staff or his rent.
“In the decision, the judge says maybe we might have to wait for certification appeal,” he says, noting they just filed their factum on that appeal and he’s currently working on his response to that. “Until I see something from it, it’s just kind of more of the same — a lot of fighting against the government where they can just fight and fight.”
Final arguments today for suspect in deaths of Calgary couple, grandson, The Canadian Press
Universities moving away from allowing students to judge sex assaults, The Canadian Press
RCMP say 21 people arrested for illegally crossing border at Emerson, Manitoba, The Canadian Press
Courts likely to probe Trump's intent in issuing travel ban, Reuters
Turkish hacker behind cyber heists gets 8 years in U.S. prison, Reuters
Germany's AfD votes to expel lawmaker who criticized Holocaust memorial, Reuters
Rights group says Pakistan has 'forced' mass Afghan refugee returns, Reuters
|Criminal lawyer Kathryn Wells calls the program 'a very good step to recognizing what people participating in the administration of justice go through.'|
Yasir Naqvi revealed the new Juror Support Program yesterday afternoon at the John Sopinka Courthouse in Hamilton, Ont. He said jurors play an integral role in the justice system and their communities, and that while it can be rewarding, “serving on a jury is not an easy job by any measure.
“Sometimes, evidence and testimony they have to consider can be graphic and deal with very violent crimes,” he said, adding that exposure to such material can have a lasting traumatic effect that impacts their daily lives and mental health.
“They very much deserve the support for the work they do,” he added.
All jurors will be given a brochure after their trial is done to walk them through the program.
Also present for the unveiling of the program was Mark Farrant, a juror support activist who suffered from PTSD after serving as foreman on the jury of a disturbing 2014 case in Toronto. Naqvi, when new to his role as attorney general, saw Farrant on the news and heard his story of the aftermath of his jury duty.
“It moved me,” Naqvi said. “I contacted my staff to ask for what supports were there for jurors. People like Mark, who have done their duty and then came forward and talked about challenges they face, that’s why we’re here today.”
Naqvi said people are now “far more understanding and thoughtful and sophisticated about talking about mental health challenges.”
Farrant says he saw a gap — and experienced a gap — that impacted him dramatically. He started advocating for more support because he “just didn’t want this happening to somebody else.” He’s talked to jurors from coast to coast and has identified a need not only in Ontario but nationally.
“Even the provinces that purport to have a program in place — they all need to be dusted off and re-evaluated,” he says.
Kathryn Wells, a lawyer with Wells Criminal Law in Toronto, says she thinks the news is fabulous and “a very good step to recognizing what people participating in the administration of justice go through.
“I can’t tell you how many times I’ve done jury trials and seen jurors in tears,” she says. “I think it’s a very, very enormous task for a person to sit in judgment of someone else even without really disturbing evidence. It’s a big job. But then if you impose [upon them] cases where the subject matter is really traumatizing, there’s no question that there’s going to be an impact for some people.”
In response to an audience member’s questions, Naqvi said Hamilton was chosen in part because of the Tim Bosma case, one of the biggest trials in the city’s history. Dellen Millard and Mark Smich were found guilty of first-degree murder in the death of Bosma, a 32-year-old father who disappeared after leaving with the two men to test drive a truck he was trying to sell. The court established that Bosma was shot in his truck by the men and his body was incinerated at Millard’s family farm.
“Hamilton has seen some difficult cases — the Bosma trial is a very good example — so we felt it was appropriate we came to Hamilton to talk about the program and make sure the jurors that were involved in that trial would hear,” Naqvi said.
The program offers up to eight one-hour counselling sessions — four being offered initially, and an additional four if the juror feels they need it — with no out-of-pocket expenses.
Wells says eight sessions sounds “really substantial” considering that the majority of the population doesn’t have benefits, but Farrant says there needs to be a mechanism in place to handle the people who need more help than a pre-determined amount of counselling can provide.
“I fully support the program — it’s the right program, it’s the right approach,” he says. “We just have to ensure that there’s flexibility in the program.”
Farrant says he met with the attorney general and his staff privately to discuss the program, and he brought up his concerns.
“They need a baseline, and they have that baseline, and they’re very cognizant that there will be cases that have to be addressed outside how the program is framed,” he says.
He adds that any additional services beyond the eight sessions have to be offered at no cost as well, as OHIP doesn’t cover the cost of counselling.
Naqvi said during his speech “this is just the beginning” and there will be ongoing assessment and evaluation of the program as it gains momentum. He also said he was comfortable that the cost of the program would be absorbed into the existing ministry budget, with a better idea after intake numbers are established.
“I’m always available for them to bounce ideas off me, and they have done that, and I’m grateful for that,” Farrant says. “I’ve been pretty open and honest along the way. I’m looking forward to working with them on this and being there, in whatever form they require.”
The government hired a third party, Morneau Shepell, to provide the service and ensure confidentiality. Former jurors can call the support line at 1-844-JUROR-ON or visit the program’s website for more information.
When requesting counselling, jurors will need to provide the location of the court where they served on the jury, the dates the trial ran and name of the case. The next step is matching the juror with a qualified counsellor in the area. Jurors can choose to receive counselling over the phone, via email or by videoconference.
The gap between the number of Canadian youth in pre-trial detention versus those in sentenced custody has once again begun to widen.
|Source: Statistics Canada|
“Certainly we are concerned about the fact that the numbers are higher for remand custody than for an actual custodial sentence,” says Samira Mobina Ahmed, litigation lawyer at Justice for Children and Youth in Toronto, adding however that the gap looks pretty narrow.
“That’s an indication that judges are using the right factors as outlined in the Youth Criminal Justice Act for when detention can be used — as a measure of last resort, so it should be that there is a small discrepancy.”
The study, titled Trends In The Use of Remand in Canada, 2004/2005 to 2014/2015, documents the results of four surveys — the Corrections Key Indicator Report for Adults and Youth, the Adult Correctional Services Survey, the Youth Custody and Community Services Survey and the Integrated correctional Services Survey — when it comes to use of remand in Canada. The first survey offered average counts data while the remaining three were used for data on admissions. The analysis doesn’t include federal correctional service data, as it does not supervise remand, or people held in ‘temporary” detention such as immigration holds.
The Criminal Code allows for detention prior to a finding of guilt “to ensure attendance in court; for the protection and safety of the public, including any victims of or witness to the offence; and to maintain public confidence in the justice system,” says the report.
While the number of youth arrested and sentenced overall, as reported by 12 provinces and territories, has declined over the years — with remand count in 2014/2015 down 33 per cent from 10 years ago and the number of youth in sentenced custody made an even larger drop of 60 per cent — this is chalked up to a drop in young people entering the system at all. The number of young people charged with a crime fell 46 per cent nation-wide, but statistically, of those arrested, time spent by youth in pre-trial detention did not change that much over the same time period.
“The numbers are on the decline, which is a good thing. Hopefully this is a reflection of the appropriate application of the YCJA,” says Ahmed. “The sentencing principles allow for there to be lots of discretion on the part of the judge to determine what the appropriate sentence is. Specifically for pre-trial detention, it shouldn’t be used as a substitute for mental health, social or child welfare needs and I think that’s still something courts struggle with which could account for any widening in the gap that you see from time to time.”
In 2014/2015, more than 81 per cent of youth released from remand in the nine jurisdictions that reported figures spent one month or less in pre-trial detention, a “proportion unchanged from 10 years earlier.” Over half of those remanded were there for one week or less — up slightly to 56 per cent from 53 per cent in 2004/2005.
In 2014/2015, and in the eight jurisdictions where information was available, Aboriginal youth made up 36 per cent — or more than one-third — of youth admissions to remand custody. This is five times their representation in the general population. In 2004/2005, this percentage was much lower at 21 per cent. Aboriginal young people in sentenced custody was also disproportionally higher.
“Our office is very concerned about the high percentage of aboriginal young people that are before the courts,” Ahmed says, noting she is unable to, based on the data provided, comment on whether this is an indication that the Gladue Principles aren’t properly being applied in the youth criminal justice context but adds “that’s certainly something we would want to make sure was at the forefront of all consideration for youth that were before the youth courts.”
For the adult population, the report doesn’t have any good news. Across the country, provinces and territories saw the adult remand number rise between 2004/2005 and 2014/2015. Nova Scotia, Northwest Territories, Manitoba and Alberta each saw over 100 per cent increases in average daily counts.
In 2014/2015, compared to 10 years earlier, the number of people in remand has grown almost six times more than the number in sentenced custody, increasing 39 per cent over the last decade while the number in sentenced custody increased seven per cent.
One in four of people admitted to remand in 2014/2015 were Aboriginal, with the exception of statistics from Alberta and Prince Edward Island. This is almost eight times greater than the representation of Aboriginals in the overall population. The statistic is also up nine per cent from 2004/2005, when the number stood at 16 per cent.
Five lawyers were appointed to the Order of Canada last week, in a milestone year marking Canada’s 150th birthday and the order’s 50th anniversary.
|Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist.|
Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist, particularly on the SCC bench from 2003-13. A law graduate from McGill University, Fish practiced mostly in Quebec — though he was called to the bars of Prince Edward Island and Alberta as well — and also lectured at various Canadian law schools including holding the post of adjunct professor at his alma mater and teaching at the University of Ottawa and the Université de Montréal. His focus in practice and in his teaching was criminal law.
Appointed to Officers of the Order of Canada are Ellen Irene Picard and Paul Cronin Weiler.
Picard was appointed for her contributions as a judge at the Court of Queen’s Bench and her further elevation to the Court of Appeal. She is forefront in the field of health law in Canada, having helped to establish it through her work as a legal scholar. She co-authored Legal Liability of Doctors and Hospitals in Canada, a book widely regarded as the most comprehensive text on the subject.
A graduate of Osgoode Law School in Toronto, Weiler went on to become a professor of law at his alma mater as well as visiting professor of Canadian studies at Harvard Law School, where he got his Masters of Laws years earlier. He was appointed for “his contributions to reforming labour and employment standards as one of North America’s foremost legal scholars,” including serving as a panelist in the United States/Canada Free Trade Agreement softwood lumber arbitration in 1992.
Benoît Pelletier, for “his efforts to bring about interprovincial-territorial co-operation and for his advocacy on behalf of Francophone communities,” and Alfred Popp, for his “contributions to maritime law” in various positions, were named Members of the Order.
Pelletier, currently a law professor at the University of Ottawa where he also earned his Masters Degree in law, was an active political figure between posts at the university, as well as the author of many books, articles and opinion pieces. A supporter of the federalist cause in Quebec, Pelletier departed from traditional policy by also seeking to help Francophone minority groups from other parts of the country resist assimilating with the English-speaking majority. He is still called upon to comment on constitutional matters.
Following a legal education in South Africa, Popp completed his Masters Degree in law at the University of Ottawa. A member of the Canadian delegation to the Legal Committee of the International Maritime Organization — where he eventually became president — Popp was a driving force in developing major international agreements in the field of maritime law. Retiring from the committee in 2005, Popp was appointed administrator of the Ship-source Oil Pollution Fund two years later.
The Order of Canada, one of Canada’s highest civilian honours, was established in 1967, during Canada’s centennial year, to recognize outstanding achievement, dedication to the community and service to the nation. More than 6,000 Canadians have been invested into the Order since its creation. To celebrate its 50th anniversary, there will be multiple special initiatives and partnerships announced throughout the year.
This year’s recipients will be invited to accept their insignia at a ceremony to be held at a later date.
Despite an injunction to stop Montreal’s controversial pit bull ban being dismissed, opponents to breed-specific legislation aren’t giving up the fight.
|Rebeka Breder, of Breder Law Co., says lawmakers need to ‘look at the person on the other end of the leash’ when developing dangerous dog legislation.|
Camille Labchuk, animal rights lawyer and executive director of Animal Justice in Toronto, says the reality of the latest decision means pit bulls — and really all dogs in Montreal — are at risk from this “vague, discriminatory and ineffective bylaw.”
“What we know about keeping the public safe is strongly related to education and dog licensing,” she says. “This is a draconian measure that’s not going to work and is going to be expensive.”
Quebec Superior Court Justice Louis Gouin granted the temporary suspension stopping parts of the new law from going into effect on Oct. 5 in Lours v. Montreal (City of), but on Dec. 1 the injunction was dismissed by the Quebec Court of Appeal and the bylaw came into full effect.
In a statement on its website, the Montreal SPCA said the appeal court is “holding the City of Montreal to the concessions it made during the appeal hearings.”
“Importantly, the City of Montreal cannot issue euthanasia orders based on breed or physical appearance, prohibit someone from reclaiming their lost dog based on breed or physical appearance, and must allow all dogs to continue to be adopted to families residing outside of Montreal,” the Montreal SPCA stated.
According to both lawyers, Ontario is a good example of how breed-specific bans are ineffective. Labchuk says research from 2012 shows there was a 40 per cent increase in dog bites reported in Ontario hospitals since the ban was enacted in 2005.
On Dec. 10, Toronto City Council unanimously passed amendments to the city’s bylaw regulating dangerous dogs. According to the amendments, which stem from a Sept. 7 report for action called Responsible Dog Ownership: Mitigating Risks of Dangerous Dogs, dogs classified as dangerous will need to be muzzled and microchipped, will not be allowed in a leash-free area and the owner must purchase a dangerous dog tag from the city and also post warning signs on their property.
Anyone found to be in violation of the bylaw, which comes into force on March 1, 2017, could face fines up to $100,000.
Labchuk calls the changes positive, saying many of the local animal activists in Toronto “pushed quite hard” to get these amendments through.
While Breder acknowledges these amendments are steps in the right direction, she says Toronto didn’t go far enough.
“Any city that really wants to go to the root of the issue should start with education or have education as part of their dangerous dog regulations,” she says.
Additional amendments to the Toronto bylaw, especially making it illegal to tether a dog outside for longer than three hours and banning choke and pronged collars, are excellent Labchuk and Breder agree.
Breder says there are a number of examples from cities in B.C. in the last decade that have reversed breed specific legislation including Vancouver in 2005, North Vancouver in 2009, Delta the year after that, Castlegar, Cumberland, Coquitlam and White Rock in 2011 and New Westminster in 2013.
“Forget activists or pit bull lovers,” Breder says. “Looking at objective data that’s out and talking to animal behaviourists, we shouldn’t be dealing with a band-aid solution that isn’t a solution at all. Look at the people on the other end of the leash.”
But the gold standard in North America is Calgary, Breder says. In 1985 the city had just over 2000 aggressive dog incidents. By 2014, that number went down to 641. The number of trials where the city tries to get a destruction order for an aggressive dog has “decreased astronomically” in that time as well, she adds.
“They moved away from an ‘animal control’ model to a ‘responsible pet owner’ model. They did this in early 2000s and what that means is they take public education very seriously. They start by educating kids in their formative years, in elementary school, on how to approach dogs, how not to approach them. Because dogs are such a part of society they worked it right into the curriculum,” Breder says.
“Essentially what that legislation does in Calgary is it targets known risk factors and known behavioural problems so that they can nip it in the bud. It’s progressive,” Breder says. “We have to remember — in the 1960s it was the Shepherd, then the Doberman, now pit bulls and the latest trend is towards banning Cane Corsos and Bull Mastiffs. Where do we stop? We, as human beings, are supposed to be intelligent and learn from our mistakes — and it’s beyond me why we’re not.”
When it comes to office holiday parties, it’s best if the only thing that’s lit is the Christmas tree.
|Natalie MacDonald of Rudner MacDonald LLP says employers and employees should remember holiday festivities are extensions of the workplace and all policies still apply.|
This is just one piece of advice to help both employers and employees make it through the annual holiday office party.
“Tis’ the season!” says Natalie MacDonald of Rudner MacDonald LLP. She says it’s important that both employers and employees understand their respective roles at the company Christmas party, and don’t lose sight of the fact it is an extension of the workplace — professionalism, courtesy and respect still apply.
“We’ve come quite a ways from the Mad Men days where people were swinging from chandeliers and photocopying private body parts. Now we’re hopefully becoming a more respectful workplace and with it there are obligations on both ends,” she adds.
MacDonald says social host liability is something employers need to pay attention to, noting their role is assessed in terms of what they have done to minimize liability and to maximize safety for the employee.
In her book, Extraordinary Damages in Canadian Employment Law, MacDonald talks about cases where the courts attributed a duty of care to the employer to provide a safe and healthy workplace, and the courts’ willingness to use a broad application of the definition of workplace.
“The concept of social host liability has been applied to the employer in a few cases, where the employer was responsible for providing the employee with alcohol, while in the workplace. In some cases, the damages have been extensive, as the courts have recognized the need to apply principles of personal injury,” she writes.
A 2002 case, Hunt (Guardian of) v. Sutton Group Incentive Realty Inc., is a good example of the concept of social host liability, she says, adding it is applied where the employer is responsible for providing alcohol at the workplace, or at an office party wherever the location.
In Hunt, an employee consumed alcohol during an open-bar afternoon office party on the employer’s premises and no one was designated to monitor alcohol consumption. After the party, the employee and some colleagues went to a pub for more drinks. She attempted to drive home and was involved in a car accident.
The trial judge found Hunt 75 per cent responsible and her employer and the pub 25 per cent jointly and severally liable, with damages assessed at over $1 million. The trial judge said the employer “should have foreseen or anticipated that some employees would stop for a drink on the way home” and that, as her employer, Sutton Group “owed her a duty of care.” The trial judge also noted, “the worsening of the weather added to the employer’s duty” and that duty was not discharged by offering cabs to the employees generally and Sutton Group should have “insisted on her leaving her keys at the office or on her taking a taxi” or should have called her husband to pick her up.
On appeal, Sutton Group argued that even if it had been negligent for allowing Hunt to leave the party intoxicated, their negligence was not the direct cause of the accident due to Hunt’s trip to the pub and consumption of more alcohol there. While the Court of Appeal agreed, they overturned the trial judge’s decision on procedural grounds, namely that the trial judge's discharge of the jury from hearing the case upon grounds of complexity and publicity. A new trial was ordered.
A 2009 case, van Woerkens v. Marriott Hotels of Canada Ltd., stands as a warning to employees. A man, who had worked for the Marriott for 22 years, was terminated for cause after engaging in inappropriate conduct at the company’s holiday party. A senior manager tasked with supervising the party failed to regulate alcohol consumption — in himself and others — and engaged in “sexually suggestive” dancing. Van Woerkens also condoned an after party with more drinking, where he inappropriately touched a female subordinate and then denied his behaviour when his employer investigated his misconduct later.
The court found the Marriott had just cause to fire van Woerken — that by engaging in physical conduct of a sexual nature with a subordinate employee at a time when she was highly intoxicated, it amounted to an abuse of power. His persistence afterwards in asking if she would pursue a sexual relationship with him amounted to sexual harassment. The court also found the plaintiff’s dishonesty during the investigation was sufficiently serious to erode his employer’s confidence in him.
The trial judge wrote in the decision — which has a section titled “The holiday party and its aftermath" — that “the plaintiff consumed alcohol to the point where it impaired his judgment and affected his behaviour that evening. His consumption of alcohol showed very poor judgment when he was one of two senior managers responsible for the supervision of the holiday party. That lack of judgment and its consequences, all contributed to Marriott’s loss of trust and confidence in the plaintiff.”
MacDonald says not becoming inebriated is rule No. 1 for employees and on the part of the employer, ensuring a safe route home. Employers should see it as “a given that some will drink to excess.”
Other do’s and don’ts for employees include dressing appropriately and behaving “as if your boss is watching.” Be mindful of your reputation — and remember all workplace policies, like those relating to harassment, still apply at holiday events.
“We need to be mindful of the fact that attending the office Christmas party is not a license to go wild,” MacDonald says.
The city of Hamilton has drafted a policy aiming to be more inclusive of its transgender citizens.
|Neena Gupta, partner in Gowling WLG’s Waterloo office and co-chair of the firm’s Diversity & Inclusion Council, says inclusive washrooms are a ‘profound way of including people in your community.’|
Neena Gupta, partner in Gowling WLG’s Waterloo office and co-chair of the firm’s Diversity & Inclusion Council, says she welcomes Hamilton’s new policy, calling it an “enlightened and proactive” move by the city.
The changes come after a local transgender woman filed the human rights complaint after being denied access by a security guard to the women’s bathroom at the MacNab St. bus terminal, despite the 2012 amendments to Ontario’s Human Rights Code legally protecting the right of a person to use whatever bathroom aligns with their self-identified gender. The woman — known only as A.B. in the tribunal proceedings and who has remained anonymous — was permitted to use the family bathroom instead.
“In the course of my work I have to tell you I’ve had transgender youth confide in me that they’re afraid of using the washrooms — afraid of being harassed by other users or passers-by,” Gupta says. “It’s really sad and so on a personal note, I think it sends a message of inclusivity and respect that this community — that has been very marginalized over history — needs to hear. Kudos to the City of Hamilton for doing this.”
The complaint was settled earlier this year, with the city apologizing and publically stating its intention to codify its existing policies concerning transgender rights. The city committed to a formal written policy reflecting its commitment to accessible and safe public facilities, such as washrooms and change rooms, as well as posting signs where they might be needed and offering more training to employees.
The remaining terms of the settlement were kept confidential.
Joyce Thomas, an associate at Lerners LLP in London, Ont., says it was a positive move on behalf of Hamilton to make that part of the settlement public.
“It does two things — first, it creates a positive precedent for other organizations to look to, but second it also strengthens the relationship with the LGBTQ community,” she says. “If that’s something the city really is looking to reinforce this would be something that would be welcomed.”
Bill 33, Toby’s Act, or the Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression was passed in 2012. The act amended the Human Rights Code to make it more inclusive and specifically include gender expression and identity as grounds for discrimination. It also ensures that everyone has the legal right to choose which washroom they use, according to the gender they identify with or live as.
“This whole issue of washrooms is more important than you think,” Gupta says, referencing the lack of accessible bathrooms for wheelchairs or even the segregated bathrooms in the United States during the era of the Jim Crow laws that made it illegal for black people to use the same washroom facilities as white people.
“Having inclusive washrooms is really a profound way of including people in your community.
Thomas says other cities or private organizations aren’t under an obligation to necessarily codify their transgender-related policies — as long as they are already in compliance with the human rights code.
“They don’t have to go through such a drastic change if they were regularly updating their policies and making sure they were meeting obligations under the code,” she says. “Their existing policies should already reflect those things that Hamilton is now codifying.”
Gupta adds that laws and policies are not effective unless they are operationalized, and training and education are her preferred methods of doing that — though she understands the need for her “least preferred methodology” of fines and penalties for non-compliance.
The city is awaiting feedback from the Ontario Human Rights Commission, an outside human rights adviser and an LGBTQ advisory committee.
An Ontario Court justice who wore a Donald Trump-inspired “Make America Great Again” ball cap to court has since apologized, but many are arguing that it’s not enough.
|Kim Stanton says when it comes to evaluating courtroom behaviour, the issue isn’t what the person intended when they acted in a concerning way but the impact of their action on people around them.|
“It seems entirely inappropriate for a judge to make such a display in a Canadian courtroom, and in particular because his actions appear in support of Donald Trump’s win as president and that on its own would be problematic — to just bring partisan politics into the courtroom — but to associate yourself with someone who has become so associated with Islamophobia and misogyny and racism is another level,” says Kim Stanton, legal director of LEAF, the Women’s Legal Education and Action Fund.
“If you were to appear in front of him in court whether as a litigant, as an accused person, as a witness or as counsel, you would have to wonder whether he can adjudicate in an unbiased manner.”
On Nov. 14, five days after Justice Bernd Zabel entered the courtroom wearing the red hat with the campaign slogan used by president-elect Donald Trump in the recent U.S. election, LEAF submitted a letter of complaint to the Ontario Judicial Council.
Beyond appropriate sanctions for Zabel, Stanton says LEAF hopes the OJC will also ensure there is broader judicial training to restore the public’s trust in the judicial system.
“When the public sees a judge acting in a way that does not comport with impartiality, it really does hit the confidence of the public in the justice system,” she says. “We want the judicial counsel to take this seriously with an eye to addressing this loss of confidence."
Emmett Macfarlane, assistant professor, department of political science at the University of Waterloo, calls Zabel’s decision “profoundly foolish and inappropriate” and says it warrants the condemnation it has received.
“Whenever we talk about judicial independence, it’s about shielding or protecting judges and the judiciary from politics or political criticism, and we don’t sufficiently recognize that judicial independence is truly a two-way street,” he says.
If society is expected to buy into the notion that judges are neutral arbiters of the law, they can’t engage in this kind of behaviour, he adds.
“This is almost mind-blowing that this judge could even entertain this let alone follow through on doing something so silly.”
Zabel has since apologized for his actions in a statement in a courtroom in the John Sopinka Courthouse Tuesday morning, calling it a “misguided attempt to mark a moment in history by humour in the courtroom following the surprising result in the United States election.”
He said wearing the cap was a “lapse in judgment” and his intention was not to make a "political statement" or an endorsement of Trump’s controversial views.
"I apologize for any offence or hurt caused by my thoughtlessness," he said.
But for Stanton, while she acknowledges it’s important he acknowledges his actions were not appropriate, she says that’s not enough — and she’s not surprised he would apologize now given that there are complaints being made to the judicial counsel. She says LEAF has no intention of withdrawing its complaint and adds it’s incumbent upon the council to consider it regardless of the apologies.
“As with other aspects of equality law, the question isn’t really what the person intended when they acted in a concerning way, but the question is what was the impact of their action on the people in the courtroom.”
Macfarlane agrees the behaviour warrants some form of sanction, but he notes that if Zabel doesn’t have a track record, he doesn’t agree with those calling for his removal from office. He says that it is harsh for a one-off incident, but he adds that some official response is important because it’s not just about punishing one judge but about “making clear to the legal profession and society more broadly about why this is inappropriate and why judicial independence is important going both ways.
“Even if it was a plain cap with no logo or lettering, it would have been at a minimum odd but to a degree inappropriate,” he says. “If a lawyer walked in to a courtroom to speak before a judge wearing inappropriate attire, they could face sanction. The fact that it’s a cap of a political nature just exacerbates how absurd and problematic it is.”
The OJC is receiving a number of complaints, including one from the University of Windsor’s law school. David Tanovich, a law professor at the university, and 26 of his colleagues made a formal complaint on Nov. 15.
Stanton says she anticipates it will take a while for the judicial council to review the information from the multiple complaints and come to a decision regarding further action.
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