Ontario Superior Court strikes down, lambastes ‘fatally flawed’ Human Rights Tribunal ruling
TORONTO, ON, February 2, 2011 (LifeSiteNews.com) – An Ontario Human Rights Tribunal (OHRT) decision to fine an employer $36,000 over her company’s dress code and a “restrictive microwave policy” was so unfair that it was “simply not possible to logically follow the pathway taken by the adjudicator,” ruled the Ontario Superior Court last month.
The case, heard by the tribunal in October 2009, involved a Muslim woman, Seema Saadi, who alleged that her employer Maxcine Telfer, who owns Audmax Inc., discriminated against her on religious and cultural grounds. The complaint was based on a “restrictive microwave policy” that Saadi said targeted her traditional spicy food, and dress-code requirements that “sounded like she was expected to wear short skirts, heels and sleeveless blouses” instead of her Muslim hijab.
After HRTO adjudicator Faisal Bhabha ordered Telfer to pay for lost wages and general damages, lawyers with the Human Rights Legal Support Centre had obtained a “writ of seizure” ordering the sheriff to sell Telfer’s Mississauga home to enforce the payment.
“The only reason they backed off, is because we got this judicial review and we convinced them to wait until the hearing was over before they tried to seize their house and sell it with the sheriff,” said Telfer’s lawyer Ted Charney, according to the Star.
Ezra Levant, a lawyer and former publisher of the Western Standard who was himself a target of a human rights complaint in the past, said the court ruling is just more evidence that Canada’s human rights commissions are “out of control.” “Every single aspect of this ruling is discreditable,” he told LifeSiteNews.com.
The human rights tribunals, which receive all discrimination complaints under the Human Rights Codes, have come under heavy fire across the country in recent years over their targeting of conservatives and Christians. Defendants have been forced to spend tens of thousands of dollars defending themselves from accusations of “hate speech,” often for simply expressing traditional Christian teachings on sexual morality.
In two other high profile cases, Levant and journalist Mark Steyn were targeted for publishing materials critical of fundamentalist Islam.
The court gave nine points on which the tribunal adjudicator in the Saadi case “failed to provide a fair hearing or made legal errors,” said the Star. The court said adjudicator Bhabha did not give Telfer the opportunity to call a witness to testify about Saadi’s clothing, and “unauthorized intrusions into other people’s desks and missing files,” for which she was fired.
“The reasons are so sparse on the factual underpinnings for this aspect [microwave policies] of the decision that it is impossible to follow the pathway by which the adjudicator came to his conclusion of discrimination,” wrote Superior Court Justice Anne Molloy on behalf of the three-judge panel.
The panel ordered the tribunal to revisit the case before a different adjudicator and told the woman to pay Telfer $10,000 in legal costs. The Human Rights Legal Support Center, who provided the Saadi free legal services during the appeals process, also volunteered to represent her at the new hearing, expected to be held within six months.
“Overturning the tribunal’s order isn’t enough. The tribunal itself should be disbanded,” Levant told LSN.
The lawyer said that the nature of the complaints - “such as that she felt insulted by comments about the smell of her lunch” - “are so absurd, it’s incredible that a government tribunal would actually sit to hear them.”
He described the order as “typically outrageous. $36,000 for someone who worked for less than two months.”
“And then enforcing the order - by attempting to seize the home of the employer,” he added. “So basically, if you (allegedly) insult someone, you can lose your home. Courtesy of the government.”
“Finally, and obviously: look at the victim here: a black woman entrepreneur, whose business it is to help new Canadians. It’s grotesque that she should be attacked by the government.”
The recent court decision is reminiscent of a similar decision handed down in 2008, when a federal court overturned a decision by the Canadian Human Rights Tribunal that ordered $150 million in back pay to be paid to female postal workers. In that decision, Judge Michael Kelen slammed the tribunal’s proceedings, saying, “This case offends the public conscience of what is reasonable and responsible.”
The judge echoed the charges of prominent critics of the human rights tribunals, who have labeled them “kangaroo courts,” saying, “The hearing lacked the discipline required of a court of law.”
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