Does the United Nations play any role in protecting human rights in Canada?

Universal human rights have been the law in Canada for some time, but we have seen that there are still many problems and the application has been faulty due to apathy and even contempt in the tribunals and courts. The Universal Declaration of Human Rights applies to all nations and is upheld in Canada’s laws, not just in human rights legislation, but also in other areas of criminal and civil law.

These include basic rights such as a fair trial, working, participating in democracy, etc. Article 2 specifies that these rights apply to:

 “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

This encompasses the right of everyone in Canada to take part in all aspects of society. To ensure that no one is prevented from doing this, Canada provides what it calls “human rights.” However, if you read the declaration, human rights are broad and apply to everyone. Given the state of the world today, they can border on aspirational. In fact, given the state of the world today, you might even ask, why should the United Nations even worry about Canada?

Systemic racism in Canada

Some of the systemic issues that Canada faces are racism in schools, hospitals, policing and other areas of life, especially towards First Nations and black people. There are numerous First Nations communities where health and public safety are inadequate. For example, two-thirds of First Nations communities have had a boil water advisory in the past decade and in fact in some of these cases they have not had drinkable water for years. Then, of course, there are all the things enacted as part of colonialism, which continue to exist or cause repercussions that have not been resolved.

People on disability in Canada generally live on an income that is below the housing costs of their communities. For example, in British Columbia the disability rate for a single person is $1,133, while the average cost of a one-bedroom apartment in Vancouver is $1,350 outside the city centre.

The treatment of refugees is another major issue facing Canada. Questions have been raised about refugee detention, the rights of undocumented migrants and the fairness of decisions.

Don’t get me started on Quebec’s bizarre what-Muslim-women-can-wear law, which will almost certainly be challenged in court.

Women in Canada have faced major roadblocks in the workforce, including the ability to find affordable daycare, unfair pay, being fired without cause and replaced by under-qualified men, and being subjected to sexual harassment.

Can the United Nations force the government to live up to their commitments?

The United Nations role is limited. When they criticize, it doesn’t necessarily mean things are going to change. For example, publicly funded Catholic schools have been criticized by the UN, but as far as I know, eliminating the Catholic school system is not a priority for the provinces that have it.

Canada is great at paying lip-service to human rights and has signed seven conventions. These are voluntary treaties. Signing a convention means Canada has agreed to honour the provisions. Some of these conventions have complaint processes. Once an individual has exhausted domestic remedies they can file a complaint under the United Nations, which is confidential.

This process exists under the Committee against Torture, the Committee for the Elimination of Discrimination against Women, and the Human Rights Committee. A new process may be added soon under the Optional Protocol to the Convention on the Rights of Persons with Disabilities. This will allow people with disabilities, whose rights have been violated, to file a complaint. Canada has committed to signing this after a consultation period, which is currently taking place.

The United Nations reviews these complaints and makes recommendations. However, the country is not obligated to comply. While Canada claims they are committed to complying, not much has changed since the country was condemned for its failures on Aboriginal rights in 2015.

Another problem is the immunity of the courts that make the decisions that take away the rights of Canadians. Politicians cannot interfere with the courts even when they’ve grossly overreached the limits of their discretion and clearly breached fundamental human rights. Greater oversight of courts in Canada needs to come from somewhere. Canada can pass all the legislation it wants, but as long as the judges care about white privilege, their decisions will continue to uphold white privilege at the expense of everything else.

More community-based and grassroots resolution organizations may help fill the gaps caused by judicial incompetence as long as they are staffed by qualified professionals. Many provincial organizations hire people with BAs to do work that they are completed unqualified to do, such as advise persons on the law or make decisions about whether a Tribunal violated the law. Ombudsperson offices, workers compensation schemes and employment standards offices come to mind. Human rights commissions are another place where unqualified people have been appointed as intermediaries. In Ontario and British Columbia, recent BA grads have even stood in the way of complaints going to hearing.

How can we help promote human rights in Canada?

One option for tackling incompetence by bureaucrats and white privilege by lawyers and judges, is to appoint qualified advocates to help people with their fundamental rights. These people could be interdisciplinary experts or qualified lawyers, but should have the skills to understand things like fundamental rights and have the mandate to uphold them above all other considerations. Considerations, such as the fact that judges and tribunal members don’t want to be embarrassed for bad decisions, should not be held higher than supposedly guaranteed human rights.

The other issue that limits rights is the cost. Without a lawyer, you are basically lost. When people end up in the courts, it’s not because they have a fabulous job that lets them pay $10,000 in legal fees. Usually, they are already struggling. Knowing how effective legal fees can be in limiting human rights, many judges will use costs to intimidate self-represented applicants from bringing human rights cases forward.

This is a main reason that I want to start a charity to help people with disabilities pay legal fees, so that judges can no longer use these excuses to take away human rights. I have personally seen how people are abused by contemptuous, white-privileged judges when they attempt to do these things on their own. More on that later.

Without the United Nations, we may not have the rights we enjoy today. However, the voluntary nature of compliance with UN obligations, and the limitations of the government to interfere in courts and Tribunals, means many of the rights we are supposed to enjoy do not exist. The government can help by putting in place the infrastructure to build a culture of compliance starting with those who are most affected.

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Bernd Walter feeds jerks on the Internet, Part 2

This morning I received two comments from a local, I presume, MWHW. That’s “man who hates women” in case you’re wondering.

I didn’t publish the comments because I think there’s enough MWHW on the Internet. However, I think the comments are instructive by what they tell us about who the audience is that Bernd Walter has in mind when he responds to a rather normal case of discrimination by lying about the facts and then trying to publicly discredit the complainant by complaining that they didn’t deliver newspapers or some other suddenly indispensable task. (Yes, delivering the newspaper is indispensible, but it is best done by the person hired to do the job. Otherwise, I would be stealing their job. )

Walter is obviously not playing to a crowd that respects women, knows about the law and legislation, sees both sides of an issue or thinks critically about facts.

He is playing to an audience like MWHW and the Vancouver Courier employee who harassed me. MWHW’s comment called me a liar and asked how I could go “on about things for so long” and not see that I am “wrong”. Oh, I’m sorry. This is a MWHW; so, the correct way of writing words that he thinks are important is: “WRONG”.

The evidence states I am not wrong because I have the affidavit that Chuck Bennett signed and I have the emails where I offered to deliver the papers with the carrier, so that I would not be stealing their job.

But reading evidence is not as fun as having this tribe of MWHW that Walter likes having, who are ready to go to bat for him and trash ethnic women who are trying to succeed at their careers and live a life free from discrimination.

MWHW even trashed me over the baker issue where I was hired to hand out samples in a grocery store and not paid… ever. MWHW missed the part where I said that Employment Standards acknowledged that I, and the other women who were also part of this complaint, did not get paid for our work, but they just didn’t care enough to enforce the law.

Seriously, it boggles the mind that this MWHW is walking around with so much hate in his heart that he has to write comments about a woman he doesn’t even know while there are people in our province basically working for free because the government doesn’t care.

Rush to judgment affects employment for people with disabilities

When I first started this project, my focus was gender and racial discrimination. The reason for that was the fact that few people would openly make a racist or sexist statement to a person they are firing or otherwise disadvantaging.

I reasoned that discrimination on the basis of a disability would be easier to prove and, therefore, cases that were brought forward would have a better chance of succeeding.

However, I’ve since found that this is not necessarily the case. In fact, the issue of accommodating disability in the workplace has become increasingly difficult. I found that the tribunals are just as likely to accept applications to dismiss that prevent evidence from being presented or heard when they are looking at disability.

In a 2012 paper entitled “Accommodation in the 21st Century” published by the Canadian Human Rights Commission, the authors argue that efforts to tackle systemic discrimination are under attack by complicating the prima facie test. There’s an increased movement to look at the types of justifications that employers and others make for their conduct as part of the prima facie test.

Prima facie means that, if there’s no other justification, the facts support the claimants’ case. If a tribunal feels that a claimant has not made a prima facie case, they will not accept the case.

At one time, tribunals looked at three factors to decide a prima facie case: 1) The person was a member of a protected group; 2) the person experienced adverse treatment; and 3) there was a link between the protected group and the adverse treatment. Now tribunals have started to bring in justification to complicate the matter.

This means that a claimant not only must prove that there was a link between the disability and the treatment, but that the adverse treatment was due to “stereotyping.”

Thus, someone who has trouble arriving at 9 am due to their disability can be fired because the employer has not necessarily stereotyped them. They just fire them for lateness. This basically throws the whole idea of reasonable accommodation out the window.

The employer is not even required to consider whether they could have accommodated the employee’s disability in the workplace, for example, by adjusting their hours.

Thus, the rush to judgment that tribunals, such as the Human Rights Tribunal, are making can be seen to be having far-reaching negative effects on societal inclusion.

Who’s to blame for human rights apathy?

When the BC Human Rights Tribunal was created, the educational role of the Tribunal was handed off to another organization, which is now the Human Rights Clinic and doesn’t appear to be doing anything in the role of advocacy.

Who’s to blame for the fact that Human Rights Tribunals don’t want to be perceived as being advocates for human rights?

If we take the belief that they are to blame, that would explain why the media looks for things like crazy cases and does very little analysis. If no one agrees to an interview, there is not much for the media to hang a story on, so they are unlikely to follow the actions of the Tribunal very closely. Reporters these days don’t have time to sit through a hearing. If there were a communications director available to go on the record, one would see a renewed interest. People could question why the Tribunal came to certain decisions and the Tribunal could explain the rationale. This would provide workplaces and individuals with more insight.

If we take the belief that the media is to blame, that would explain why the Tribunal has taken on a more apathetic role, even going so far as to lie to dismiss cases. No one is performing a watchdog role and the media only pays attention when a decision seems odd or outrageous. As the public appears disinterested there is no reason for the tribunal to champion human rights.

If we believe that it’s the right-leaning government that’s to blame, this would also explain the apathy. “Activist” judges are a buzzword among certain people who don’t like to see individual rights upheld that might conflict with more powerful interests. If a human rights tribunal takes on an activist role they may attract positive interest from the community, but they may also attract negative interest, causing the government itself to start questioning whether their appointments have become an embarrassment or are creating an environment that’s seen as not “business-friendly”. To survive in such a culture, the Tribunal members might think its politically expedient to stay below the radar and take as few cases as possible to a hearing to avoid attention and accusations of “activism.”

The reality is it probably is a combination of the three. I want to explore how both the political environment and the internal apathy of the people appointed contributes to a negative climate for human rights in BC.

How to spot a lie in an administrative tribunal decision

I mentioned (once or twice) that Bernd Walter, chair of the Human Rights Tribunal, stated that I was fired with cause for not delivering newspapers. I also mentioned that the employer signed an affidavit that this was not the case, and Walter also had evidence that I had offered to deliver the papers with the carrier, so that I would not be stealing an eight-year-old’s job, or even worse, the job of a person with a disability. Many of our carriers were adults living with learning disabilities who clearly deserve their pay cheques.

However, that was not the only minor fib in the report. Walter was also untruthful about the time period between my being fired for no good reason and a reporter with only six months experience being appointed to my job. He said it was a month even though I had stated that I had learned about it through the grapevine only two weeks after I had been fired.

It would appear that the lack of a reason for the termination and the immediate appointment of a substantially less qualified individual was what was required to establish that there was a prima facie case for discrimination. Otherwise, why pick these two things to lie about?

It’s pretty bad when you can establish a prima facie case by examining what the tribunal chooses to lie about.

However, outright lies aren’t the only way that tribunals dismiss valid cases. I think I have enough experience to establish some patterns. For one thing, they will simply not mention facts that are central to your case. Sometimes they will avoid noticing entire documents. They also twist what happened to make it reflect poorly on the employee, rather than the employer (hence the newspaper delivery scandal). They will also report background information and pretend that’s the thing you identified as discriminatory. Let me give you an example, to show you what I mean:

Mary says she accidentally broke the photocopier and entered her boss’s office to tell him. When he heard the news the boss, called her a “dumb blonde.”

The Tribunal would then report this as, the boss got upset with Mary for breaking the photocopier. No mention will be made of the “dumb blonde” comment and, of course, the Tribunal will say that the incident was not discriminatory.

In fact, in my analysis of cases for my book, I’m focused on this very type of thing as this is the easiest way to determine if the Tribunal is lying or trying to obfuscate the facts. I’m trying to find cases, where the thing alleged, or the tone in which an incident is recounted in the decision, reflects poorly on the employee and the event, out of context, doesn’t seem to be discriminatory.

It’s quite possible if you scratch the surface you’ll uncover a lie and a valid case that was unfairly dismissed.

Legislation provides a false front for tribunals

When I first moved to Vancouver in my twenties, I was looking for any type of job to pay the rent. The first one to come along was offering samplings of ciabatta bread at Costco. I admit the bread was delicious. However, the problem was the owner of the bakery promoting the bread.

I was among six women who filed a complaint with Employment Standards BC about his failure to pay. It took over a year for the case manager to investigate our claim. To this day, I don’t know what she was investigating. The guy pretty much admitted that he didn’t pay us. His excuse was that we didn’t provide some sort of time sheet, which I actually had provided to him. Even if I had not provided it, the legislation is quite adamant that not filing a piece of paperwork cannot be used as an excuse not to pay. Why was the investigator not able to wrap this up in a week with six claimants and an employer that admitted guilt? That remains a mystery to this day.

In any case, after more than a year, I had moved back to Ontario and received a letter stating that the employer had no assets so we would never receive our pay. Not only that, the investigator argued that it had been a really long time since the event had occurred so he shouldn’t have to pay up anyway.

I find it highly unlikely that someone could open a bakery and sign a contract with Costco without any assets. He’d have to have tens of thousands just burning a hole in his pocket or he’d have to have applied for a loan citing his assets.

Secondly, if he couldn’t afford to pay his creditors, he should have had to declare bankruptcy. Why was the BC government helping this creep stay in business when he can’t even pay his employees?

Thirdly, how can the government possibly rationalize blaming the delay on the claimants, when it was the investigator who didn’t perform her job in a timely manner?

My point in bringing this up is to demonstrate that a lot of the legislation that is passed to protect workers offers nothing more than a false front. People believe the law is there and most people, out of human decency, won’t do anything to breach it. But the reality is the law is not on the side of the worker and it’s a mere fluke when the minimal standards are actually enforced by the administrative tribunals that have been put in place to uphold the legislation.

Although I admit to being the type of person to blame this sort of thing on neo-liberalism, in this case, the government was NDP at the time and BC was still known as a leftist province across the land. Really the problem comes down to apathetic bureaucrats. It’s far easier to blame the employees than the employer, even when the employer is clearly in the wrong.

What needs to change is an acceptance of the fact that the employer is not always in the right and there are a lot of poorly run organizations out there. We’d all be better off if these laws were enforced. If administrative tribunals are not going to uphold the laws, governments should be looking at the type of people they are posting to these positions and making sure that they know the legislation is enacted for a reason.

Human Rights Tribunal chair feeds jerks on the Internet

Harassment of women online is so common that the phrase “online while female” is sometimes used (a play on the phrase “driving while black”).

A woman online is considered a target for harassing behaviours such as threats and ridicule. The goal of the harasser is to tell women that they either have to repeat what men believe or they’ll be silenced, or to exercise power over women through threats and sexualized language, or to tell them they aren’t welcome in professional life by denigrating their skills and achievements.

While one would believe that most fair-minded people would ignore this conduct, the reality is this is not the case. Employers don’t want to take a chance on someone who’s been harassed online for fear of attracting that negative attention their way. Many women will gang up with the harasser to target the person being harassed, because they want to identify with a more powerful group and divert negative attention away from themselves. Many more people will stay silent and avoid getting involved.

The results are much different for the harasser, of course, because normally they stay anonymous, and even if their friends know who they are, they are more likely to get a pat on the back for their aggression than they are to be criticized.

In my case, the person harassing me clearly worked at the Vancouver Courier. I met with the publisher, now retired, who was very polite. She claimed that the reporters didn’t know who was responsible for the anonymous blog. I didn’t really believe her, because as soon as the anonymous bully left a post, they were all over it commenting. She gave me a book about the history of Vancouver. She Googled me and told me she could only see good things, such as my bio and articles I’d written. However, she was sitting on the other side of the desk, so I couldn’t see her screen. She told me that in time, the result would be buried and I shouldn’t worry about it.

However, I thought about it for about a week, and called back. I still thought that it was clear that it was Courier employees involved, the behaviour was unethical for journalists to engage in and the newspaper should do something about it.

However, by this time the nice publisher had retired and Dee Dhaliwal had taken over. All she did was argue with me and insist that she wasn’t going to do anything about it. Her level of hostility clearly indicated that she knew it was her employees involved and instead of dealing with it she was trying to silence and intimidate me.

At first I thought it was the editor because he never returns his phone calls and doesn’t appear to have too much to do. In fact, you’re not even allowed to leave him messages. That’s right: you’re not worthy to have your voicemail ignored and must submit to having your email ignored.

However, having been exposed to a number of articles by Mike Howell, I’m more inclined to attribute it to him. The reason is that the anonymous blog and Howell’s articles for the Courier are written in the same style, which is an unusual style for a journalist covering city hall – first person with a strong helping of sanctimonious judging.

My experience covering City Hall is that if you want to have real stories you should maintain an air of objectivity so you don’t burn bridges. If you do burn your bridges, all you are left with is, well, the ability to sit in meetings and judge sanctimoniously.

I decided it was a waste of time to focus on his sanctimonious judging and decided to take up yoga instead. The world is a much happier place when you don’t read what aggressive men have to say about you or anyone else for that matter.

However, I also realized that I have to get this story out there, because the role of the Human Rights Tribunal in creating this unhealthy situation cannot be understated. By lying about my case and diminishing me as an editor and journalist, the chair of the Human Rights Tribunal, Bernd Walter, fed the jerks-on-the-Internet beast and should be held accountable. These are our tax dollars that are going to an organization that cannot even tell the truth about women at work.

BC Human Rights Tribunal has questionable approach to privacy laws

The BC Human Rights Tribunal has a bizarre notion about what constitutes protection of privacy.

If you file a complaint, the complaint itself is private until the case goes to hearing. If the opposing party files an application to dismiss, this and any evidence and submissions are also considered private.

However, the Tribunal will make a decision based on this evidence and post this on the website. This decision will inevitably contain names, information about people’s employment, information about their health and relationships, etc.

But still, the actual evidence and submissions received by the Tribunal are kept private and won’t be released unless the media or someone else is able to convince the Office of the Information and Privacy Commissioner to release them. (I will at some point attempt this as part of my research but I need to identify the right type of case first. Once I do, I will blog about it.) As far, as I know, no media outlet has attempted this in an application to dismiss.

To return to the issue of the Tribunal releasing private information on their website of people involved in cases that didn’t go to hearing, it’s hard for me to accept that the public interest is served. For one thing, the public and the media can’t act in an oversight role because they don’t know what information was presented and what was left out. They have no context, so they don’t gain any knowledge from reading these cases, or at least they gain nothing by knowing the personal information.

For another thing, in my case, the “facts” reported in the Tribunal’s decision bore no relationship to the actual facts in the evidence. They falsely reported that I was fired with cause for not delivering newspapers when the employer had not made this argument. Obviously making false statements about someone’s employment and hiding the evidence that you are lying does not protect their privacy.

Either the Tribunal should adhere to the truth (which is highly unlikely), make the submissions open to the perusal of media and the public, or omit the names from cases that don’t progress to a hearing.

Mistakes not up for review

In every industry people make mistakes, but there’s only one industry where people sit around and debate whether or not mistakes should be corrected. In the world of courts and administrative tribunals people worry about whether correcting a mistake would undermine the autonomy of the mistake maker or otherwise reflect poorly on the mistake maker’s “expert” status.

If you ask me a mistake is a mistake. If a mistake can be corrected, it should be. A mistake should be considered an even bigger problem if it affects someone’s human rights, livelihood or dignity. Unfortunately, I am but a mere mortal and mere mortal mistakes are treated differently than those of the “experts” at administrative tribunals.

In a 2013 speech to the Council of Canadian Administrative Tribunals, Chief Justice Beverley McLachlin said that when tribunals were set up, it was important to ensure that they stayed within the boundaries of their mandates and held fair hearings. For this reason, the courts were given oversight in the form of “Judicial Review.” However, she recounted that in the early days the system was highly confrontational with courts questioning the interpretation of the statutes and legislators entering privative clauses to prevent courts from overturning tribunal decisions.

McLachlin said there was a correction over time with courts realizing that tribunals were doing important “policy” work.

Over time, she said the courts came up with standards of review, including “correctness” for legal issues which is a lower standard of review and “reasonableness” for other errors, including errors of fact.

To people who rely on the English language to communicate in a normal faction, the word “reasonableness” would seem to mean that any fact reported by a Tribunal that is not true cannot be reasonable and, therefore, one would have to throw out decisions based on those false statements. However, this is not what reasonable means in a court. It actually means a very high standard of deference and so the judge can accept things that aren’t proven by evidence or testimony or even disproved by the evidence.

This seems to me extremely problematic as it seems to suggest that a tribunal can disregard facts in order to write new policy.

And what happens if the policy is cost cutting at the expense of what the legislation was enacted to accomplish?

Cost cutting would seem to be the reason why so few human rights complaints filed with the BC Human Rights Tribunal make it to a hearing. If the policy is that the Tribunal wants to keep costs low, then it makes sense for them to lie about facts, because they know that if it proceeds to a Judicial Review, the judge can very easily throw out a complaint that the Tribunal did not get the facts right.

Therefore, policy can be re-written based on facts that aren’t even true. That’s a very scary thought for anyone who cares about human rights.

Human Rights Tribunal errs on the side of dismissal

Some people find my story a little incredible. For one thing, why would Bernd Walter, the chair of the Human Rights Tribunal, bother to lie about an affidavit when it could cause embarrassment and, even if he did bother, wouldn’t there be enough checks and balances in place to prevent it?

For one thing, there would be no reason for him to think it would be observed because without a hearing, and he controls whether a hearing takes place, there is no airing of the evidence. For another thing, the media is too busy with their ridiculing of human rights complainants and looking for “crazy” cases to bother asking questions about what the tribunal is actually doing. We can call this the Ezra Levant effect.

For another thing, the checks and balances don’t actually operate as checks and balances. The Judicial Review process involves going in front of a judge and pleading your case that the tribunal “erred.” Using loaded terms like “lied” is a bad idea. However, some errors are allowed because the “standard of review” is very high. A judge can agree that a Tribunal erred, but that doesn’t mean they will send the decision back to the Tribunal and ask them to produce less faulty work in the future. It’s completely up to the discretion of the judge to decide whether the error was a serious one or not. If that wasn’t a big enough hurdle, if the judge notices that the tribunal fudged the truth a little, they are not going to be the ones to raise a fuss about it. More likely they will not want to embarrass these very important and upstanding folks at the Tribunal. You on the other hand are a nobody, so the answer is obvious. Ignore it. In fact, in my case the judge did not even acknowledge the affidavit at the centre of my Judicial Review application.

If you’re anything like me, you might ask, isn’t lying to a court a serious offence under the Criminal Code of Canada? Well, I tried this avenue. I complained to the police that Bernd Walter had lied to the court and to the Canadian Judicial Council, that “Justice” L.A. Loo had upheld what was pretty much an obvious lie directly contradicted by an affidavit signed by the employer.

At first I received snide letters ridiculing my arguments and trying to discredit me. However, when I pursued it, I received much more polite letters, although from different people than those who had originally replied. From the police I was told that perjury may be in the Criminal Code, but it is rarely ever prosecuted. When it is, it is only on the recommendation from someone within the system.

From the Judicial Review Council, I heard that very few complaints against judges go anywhere, and I should just give up because mine wasn’t one of them.

Returning to why the Tribunal is conducting itself like this in the first place, it likely comes down to cost. The Tribunal wants people to file applications to dismiss cases. Given that the respondents don’t exactly like the people filing the complaint, they are extremely likely to say things to discredit them. The Tribunal can then use these things to dismiss the case without bothering to prove them.

While the Tribunal should be happy if everyone agreed to mediation, instead they are happy if everyone applies for an application to dismiss and, in fact, it is openly encouraged.