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Saturday, April 18, 2009

BC Conservatives pledge to reform Human Rights Tribunals

The BC Election campaign and referendum campaign are under way. 

Over the last couple weeks, I have been reaching out to parties and to interest groups to get their views on issues of concern to pro-liberty voters and their supporters across Canada.  You'll see those interviews here on the Standard over the course of the campaign.

Among those I've spoken to is Wilf Hanni, leader of the upstart BC Conservative Party (no relation to the federal party).  The BC Tories have been in the press lately.  After some internal troubles last year, Hanni has revitalized the party and is aiming to take a seat, and possibly hold the balance of power in the next session.  The likelihood of that happening is open to debate - but what isn't, is the unprecedented public presence of the Conservative Party in this election and their potential to act as a spoiler for the BC Liberals

We'll be publishing a full interview with the BC Tory leader here next week, but for now, here is an excerpt. 

I asked Mr. Hanni (fyi: former subscriber to the Western Standard) about the Steyn and Levant free speech cases:

Yes, we are aware of that case. That has helped us to formulate a position to reform the human rights commission when we form government. Our position is as follows:

A BC Conservative Government will reform the BC Human Rights Tribunal:

  • So that any complainant will be responsible for the legal fees associated with his or her human rights complaint.
  • To make complainants responsible for paying the defendant’s legal fees should the complainant lose their Human Rights Tribunal case.
  • To disallow individuals and organizations from making Human Rights Tribunal complaints when Human Rights Tribunals in other Canadian jurisdictions are already investigating the same issue.
  • To disallow cases dealing with freedom of speech under Section 2 of the Charter.
  • To allow appeals, to a court of law, for any decision made by the Tribunal.
  • So that the Tribunal cannot render penalties outside the boundaries of Canadian Laws.

We realize that it is neither fair nor equitable that complainants currently receive free legal representation no matter how frivolous the complaint, while defendants must pay their own legal fees. 

I know that some people will be quick to dismiss the BC Conservatives as a fringe party, but don't forget that you could have said the same thing about the Liberals 10 years before they held 95% of the seats in the legislature. BC changes quickly, and to see any party with these views is important. 

More to come.

Posted by Robert Jago on April 18, 2009 in Canadian Conservative Politics | Permalink


Are you trying to split the right wing vote so your soft on crime pals in the NDP get elected?

Posted by: No Commies | 2009-04-18 5:02:26 AM

Cartoons got us into this mess
cartoons will get us out of it

Posted by: 419 | 2009-04-18 7:40:14 AM

Which crimes do you actually want punished more harshly? And how would a provincial government go about doing that?

Do you know anything about these parties? The Steyn/Macleans case here in BC was prosecuted in a human rights tribunal established by the BC Liberals. Also established the BC Libs was the Pacific Carbon Trust, tasked with spending the proceeds of the BC Liberal Carbon tax.

Which of these things do you consider 'right wing'?

Posted by: Robert Jago | 2009-04-18 7:45:33 AM

It would be nice to think that if the BC Tories actually managed to win some seats that they might make this pledge a condition of any coalition with the Liberals. However, they remain virtually unknown--I for instance would not even know of their existence if not for this blog--so that is extremely unlikely to happen. Look at all the press the Greens get, and not one single seat.

Posted by: Shane Matthews | 2009-04-18 8:47:52 AM

When a Canadian asks you a question it's considered hostile to respond with a question.

Your non-response and support of the New Democratic Party of BC is duly noted, labour activist Robert Jago. Maybe if you lived under Dave Barrett, Mike Harcourt, and Glen Clark's governments - each of whom were demonstrably more statist than their opponents and each of whom massively increased spending - you'd understand.

I wish my great grandma were still alive, she'd set you straight like she set me straight years ago about the BC NDP. I later fact checked her claims - she was right, spending went up far more under the NDP than other governments.

Posted by: No Commies | 2009-04-18 9:04:41 AM

Like Shane I was unaware of the existence of the BC Conservatives prior to the WS blog, and from what I see they have no candidate in my riding. Our choices appear to be Liberals, NDP or Greens in this riding, which is not much of a choice.

As for promising to reform the BCHRC, sorry but reform is not good enough. There are sufficient existing laws to deal with any case - excepting of course hurt feelings. The only solution is to axe the BCHRC.

Posted by: Alain | 2009-04-18 11:57:19 AM

What he said. These 21st-century witch-finders should be dumped on the dustbin of history where they belong. If people can't handle hurt feelings, they are free to commit suicide and put themselves out of our misery.

Posted by: Shane Matthews | 2009-04-18 4:46:24 PM

This is all very nice, but perhaps Mr. Hanni might take a moment to inform himself about the law in BC before proposing reforms. His promises, I suspect, arise from his reliance of the meanderings of Ezra Levant, who has a gift for misinformation.

For the record:

- in BC, complainants pay their own legal fees. While there are some non-governmental bodies that provide advice and, in some cases, representation, most complainants hire counsel or appear on their own behalf.

- Even in ordinary court cases, successful defendants do not recover legal fees. Court-ordered costs usually amount to 30-40% of actual legal fees.

- while the BCHRT is generally a "no-costs" system, the Tribunal has the power to award costs against a party for misconduct in the course of the litigation.

- all human rights decisions, in every jurisdiction in Canada, can be appealed to the ordinary courts (in BC, the appeal is the the BC Supreme Court) by a process known as judicial review. Like any appeal, the courts are primarily concerned with questions of law, not findings of fact.

- it goes without saying that a tribunal cannot impose penalites not allowed by law.

That leaves the hate speech provision and the multiple complaints concern. These are, in fact, a single issue. All other grounds for complaints arise within the jurisiction - a BC body doesn't have jurisdiction in employment or housing that takes place in Manitoba -- but publication can take place in printed form across Canada (which would bring it within the jurisdiction of the various provincial acts that have hate speech provisions) and on the internet (which is covered by s. 13 of the CHRA).

In short, Mr. Hanni could have simply said that if elected (a big "if") the BC Conservatives would repeal s. 7(1)(b) of the Human Rights Code. Of course, that would leave a lot of white space at the bottom of the press release.

Incidentally, the Macleans complaint was heard by the BC Human Rights Tribunal because the magazine's lawyers failed to bring a preliminary application to dismiss the claim. These application have become standard practice before the Tribunal since the elimination of the BC Human Rights Commission, which screened out vexatious complaints. Indeed, the Tribunal, in its decision, seemed puzzled that no such application was brought.

Posted by: truewest | 2009-04-19 10:19:25 AM

Defending the HRCs as usual, Truewest. Interesting that while you concentrate on fairly minor details and technicalities of procedure, you ignore the basic problem: That these tribunals often award lavish sums on the basis of "injured dignity" and other non-injurious practices. Standards of proof are lower, and the councils themselves heavily stacked with activist types. For many of these "infractions," a cease-and-desist order and a published apology would be more than sufficient, but they will have their pound of flesh, even though no law is broken.

As for the fees, we both know that most HRCs are not a complainant-pay system, and appealing to a regular court is extremely expensive. The HRCs also do their reputations no favours when they accommodate shady serial complainants like Richard Warman.

Posted by: Shane Matthews | 2009-04-19 10:36:03 AM

These aren't minor details or technicalities. These are the things Hanni says are wrong with the process. I'm merely pointing that the reforms he proposes are, at least in BC, entirely unnecessary and that he looks a dolt for proposing them.

As for the rest:

- I'm pretty sure most Tribunals are complainant pay; if you think I'm wrong perhaps you'd like to do the research and report back, rather than make unfounded assertions. Because you would never want to make unfounded assertions.

- While you may think "injured dignity" is not a recoverable head of damage, the fact is that both our courts and our legislatures have recognized that it is. In employment law cases, for example, courts may increase the period of notice (and thus the damages if the employer showed bad faith in the manner of dismissal, which may include showing a blatant disregard for the employee's dignity. These are known as "Wallace damages", after the 1997 Supreme Court of Canada case that found that they can be awarded.

- "..they will have their pound of flesh, even though no law is broken"? Well, since human rights acts are laws that forbid discrimination, clearly those are broken when a respondent discriminates on a forbidden grounds. Or do you only recognize some laws as "real laws".
- While you object to the cost of a judicial review, your solution -- shut down the HRTs -- would leave those "extremely expensive" courts to deal with both questions of fact and law in all human rights complaints.

Incidentally, I'm not defending the Human Rights Commission in this post.; B.C. has no Commission, only a Tribunal. If, after all your bluster, you can't tell the difference between those two, why should anyone take what you say seriously?

Posted by: truewest | 2009-04-19 11:19:17 AM

Smoke and mirrors from trueleft. The examples given by Ezra Levant are well documented, so unless you can prove otherwise you show yourself as a fool in referring to his "meanderings".

Posted by: Alain | 2009-04-19 11:30:42 AM

Actually, Alain, Ezra's reporting of actual human rights cases in rife with errors (or, if you prefer, misrepresentations.)
For example, he states that rape victims made "anguished pleas" that a transexual named Kimberly Nixon not be allowed to be a counsellor at Rape Relief, even though she was, legally, a woman. There is no record of such pleas; in fact, Rape Relief staffers objected to her because she was not born a woman and thus had not experienced the opression of a "real" woman. Levant also claims Nixon was "unbalanced" - again, the evidence says otherwise.

In the McDonald's hand-washing case, the BCHRT did not find that the complainant "did not have to wash her hands" as Levant claims. Rather, it found that the restaurant had failed to accomodate the woman's recently-developed disability when it fired her after 23 years of service because she developed a skin disorder that limited how frequently she could wash her hands.
It should be noted that McDonalds, which has shown itself quite willing to litigate uneconomically (see the British "McLibel" case, in which the won an empty judgment against two penniless animal rights advocates) did not seek judicial review of the decision.
Read the decisions; don't rely on Levant's skewed summaries. He may be lawyer (although the Law Society may have something to say about that soon enough) but he's writing as a politician.

Posted by: truewest | 2009-04-19 11:58:38 AM


Thank you for these clarifications. They've made for interesting reading!

Posted by: Terrence Watson | 2009-04-19 1:09:51 PM

More of the same convoluted arguments I note. The fact remains that one working in the food industry who refuses to wash his hands for whatever reason and who obtains such a ruling is ridiculous. It all boils down to the same regardless of attempts at hair-splitting.

The same applies to the transexuel case.

If anyone is trying to skew the situation, it is indeed trueleft.

Posted by: Alain | 2009-04-19 2:12:48 PM

Shorter Alain: "Don't confuse me with facts."
There's nothing convoluted, and indeed, nothing like argument in my last post. I simply provided an accurate summary of the decisions .
Levant twists the facts to suit his purpose and Alain, happy in his ignorance, plays along.

So who's the fool?

Posted by: truewest | 2009-04-19 2:31:58 PM

Truewest isn't arguing that these decisions were morally just, or even that they were legally justified, given human rights law. He's just summarizing. Anyone can check the veracity of his summary by reading the cases himself.

Thanks, Truewest.

Posted by: Terrence Watson | 2009-04-19 2:40:18 PM

The BC Conservatives have half developed ideas and a half developed political philosophy. If they want to give BC an alternative they should be arguing the BC Human Rights Tribunal should be completely wound up. It is a ridiculous, dangerous affront to freedom and completely unnecessary. Our existing court system is more than enough.

Posted by: Rob H | 2009-04-19 2:58:51 PM

Truewest. 23 years of service at MacDonalds! Wrong! Also the Tribunal did say there was no evidence hand washing was necessary. Read the decision yourself. MacDonalds sought to have the women perform other duties but she refused.

Posted by: Rob H | 2009-04-19 3:09:01 PM

Rob H.
Sorry, but I've read the dedicsion and you're wrong on both counts.

At para. 29, the Tribunal writes: "She remained employed by McDonald’s for 23 years, and expected to remain at McDonald’s until her retirement."

You're also misrepresenting the tribunal comments on hand-washing. I presume you're referring to para. 240, where the tribunal writes:

"Further, there was no evidence about the relationship between food contamination and hand-washing frequency. For example, there was no evidence to address whether the goal could have been met with hourly or half-hourly hand-washing or some other timed hand-washing frequency that Ms. Datt might have been able to meet. There was no evidence of the actual risk to the public if Ms. Datt, the only employee who had some form of hand-washing restriction, was provided with modified duties or a modified way of working. A workplace policy that necessarily restricts McDonald’s duty to accommodate a disabled employee might have to be varied in appropriate circumstances, with the appropriate mechanism in place to meet food safety requirements. As stated in Meiorin, the standard itself must allow for individual accommodation."

I think you will agree that that passage does NOT say there was no evidence that hand-washing was necessary.

As for Ms. Datt's willingness to perfom other duties, I have reviewed the decision and there is no indication that she refused to perform other duties. Indeed, the tribunal found that she was willing to work as a hostess part-time and to supplement that with other duties.
Perhaps you can take me to the passage where it says she refused to perform other duties.

Incidentally, if you think that the courts can handle the workload of the HRT, you're dreaming. There are a number of reasons that initial jurisdiction over the human rights codes was given to a tribunal, including cost and ease of access. Those reasons remain valid.

Posted by: truewest | 2009-04-19 3:44:04 PM

Truewest is so truly west he's fallen off the shelf and into the sea.

Costs for misconduct during hearings is not the same thing as costs for losing. Misconduct before a real court would likely incur liability to pay all the other side's legal costs. The principle of cost liability is to keep parties responsible - the HR process is full of vexatious chancers, and the activist appointees are pretty unrestrained in their engineering work.

And no - I can tell you as someone who is involved in the court system daily, the courts wouldn't have the slightest trouble taking on the cases - in fact the volume would drop significantly once would-be complainants had to get serious about hiring their own lawyer and risking a payment to other parties for losing. Even if the volume didn't drop, it would be a drop in the bucket compared to the enormous number of cases brought and writs filed now.

No, the reason the tribunals were created were to slope the playing field in every conceivable way and you know it. This sort of abuse and political nonsense couldn't take the siftin and geniune inquiry of the court process.

Complainants may, but need not, have lawyers prosecute their cases at the HRT's. The government will be happy to force us all to pay for prosecution if the complainant opts out of the dirty work.

Even in the employment and housing sphere, there is absolutely no reason for privileged classes of complainant. If I am refused work, or fired, because I am stupid or ugly, the consequences are just as bad, probably even worse emotionally because they are highly personal, as if I was a complainant privileged under the HR Code. Nonetheless, I have to hire a lawyer etc. Rationale? None, except an ideology that says some are more equal than others. And section 7 is a disgraceful offence to centuries of historic struggle.

The BC Liberals vehemently opposed s. 7 when it was introduced by the NDP, but they're shameless now, only having to edge a tad to the right of the NDP. Flakes was the best word I've heard lately for them.

Truewest - keep swimming.

Posted by: marvell | 2009-04-20 10:46:52 AM

Terrence, do you feel an obligation to try to defend trueleft? I actually had already read the information, and in fact Ezra had provided the same or the links to the full documents.

There was absolutely nothing new being added other than one attempt after another to muddy the water or play the old smoke and mirror game.

Posted by: Alain | 2009-04-20 12:27:37 PM

Truewest, you say they're not minor details or technicalities. I say they are. Because everything, that's EVERYTHING, it subordinate to the only thing that truly counts: results. To argue the validity of details of procedure in the face of despicably vexatious and even persecutory rullings (in the case of serial complainants like Richard Warman) that would never make it to a real court is disingenuous.

In the civil courts, "injured dignity" is considered an aggravating factor, not a tort in itself. Wallace damages can increase the amount of an award, but a case based entirely on "injured dignity" is not likely to get very far. And tort reform is another part of our legal system that cries out for overhaul, especially in the United States. It really is a wonder more tort lawyers aren't found stuffed in car trunks with their hands tied behind their backs and half a dozen bullets in their heads.

If human rights violations are actual violations of law, then the place to try them is in a criminal court, where there are rules of evidence and where certain minor quibbles (like truth and existing law) actually make a difference. In theory, a human-rights tribunal could be as fair as a real court, but in practice this isn't the case because the rules are much more relaxed and HRC members tend to be "people on a mission," rather than impartial judges. There is also an attitude that since prison time is not on the table, they can be a little freer in handing out punishments, even if they are in amounts sufficient to bankrupt people.

As for the courts being the sole recourse for human rights complaints, my thought on that is: Good stuff. Even, and especially, if it puts you out of work. No court is better than an unjust court, just as no cure is better than a cure that makes the patient worse.

P.S. HRC can mean Human Rights Commission or Human Rights Council. Since these organizations are essentially the same in outlook, rules, and loopiness of judgements, the sole significant difference being that one is complaints-driven and the other investigates of its own volition (more insidious, I agree), I don't draw that much of a distinction between them.

Levant may be writing as a politician, but so are you. Your tone is openly mocking, scornful, and hateful of anyone who dares criticize your beloved commissions. You hardly speak on these blogs except to rush to their defence whenever their conduct is questioned. You are about as impartial as the average HR councillor...unfortunately.

Posted by: Shane Matthews | 2009-04-20 12:33:55 PM

P.S. Not long ago you claimed that the HRCs did NOT based awards on "injured dignity." Now you not only admit it but try to justify it, based on the limited example of Wallace damages that were specific to employers who dismiss employees in bad faith. You can't reasonably extend that to two dykes who felt offended when a Christian church asked them to hold their reception elsewhere and even offered to pay any extra expenses thus incurred--hardly "bad faith."

Posted by: Shane Matthews | 2009-04-20 12:36:08 PM

Since you appear to oppose human rights legislation generally, you'll forgive me if I take your claim that "the courts wouldn't have the slightest trouble taking on the [human rights] cases" with a rather large dose of salt. The courts are clogged as it stands, and the introduction of a thousand or so more claims will make matters much worse. Anybody who actually works in the courts (rather than merely being "involved") recognizes this and appreciates that the proper role of the courts is as a supervisory body reviewing the decisions of administrative tribunals such as HRTs.
BTW, you say you are "involved in the court system daily". Lemme guess. Process server? Sheriff? Vexatious litigant?

How is that you guys manage to mangle every human rights case your reference. The case you refer to involve two lesbians booking a hall owned by the Knights of Columbus, not a church. And the Knights did not offer to pay any extra expenses incurred until they got a letter from the couple's lawyer demanding such payment. Prior to that the message was, basically, "We're Catholics - we don't have to deal with your kind." That is, indeed, bad faith (pun intended).

Posted by: truewest | 2009-04-21 9:07:37 AM

Truewest, we've already been around this maypole before. I've read the judgement, which awards damages of 1,000 each for "injury to dignity, feelings, and self-respect," in addition to reimbursement for out-of-pocket expenses to compensate for their "injuries." I've also read the Knights' statement, and of the fact that this Knight was forthwith terminated from his employment at Costco, possibly over this incident, and at last report may have lost his home. All because a couple dykes felt "offended."

Your ham-fisted attempt to sidestep this travesty of justice that can put a permanent social and financial stain on a person over a few bruised feelings with a single paraphrase heavily subject to your own biases not only doesn't cut it, but it downright despicable.

Posted by: Shane Matthews | 2009-04-21 9:29:28 AM

Actually, my paraphrase pretty much sums of the Knights' initial position, not to mention their position at trial. Perhaps if they had acted in a more...what's the word?...oh, yes, Christian fashion, they wouldn't have ended up in this mess. As for the unfortunate Mr. Hauser, I'm not how Costco's decision to can him, justified or not, can be laid at the feet of the HRT or the complainants. Unless, of course, it's a Big Gay Conspiracy. Yeah, that's it.

Posted by: truewest | 2009-04-21 10:39:52 PM

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