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.

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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.

 

Meet the persecuted wealthy white male

A commentator on Rabble, David J. Climenhaga, pointed out that when the NDP and the Liberals go begging for campaign funds they use standard marketing techniques like features and benefits and occasionally stray into urgency, loyalty and rewards.

The Conservatives on the other hand are all about pain points. What could Conservatives possibly be pained about, one might ask. Well, it’s exactly as it was stated in the infamous video, “the lying piece of s**t” media. (Except in their fundraising emails, they replace “lying piece of s**t” with “elites.”)

Everyday the media elites are out to get Conservatives and that’s why they need your donation. Never mind that no one would argue that the major dailies in Canada are bastions of liberal discourse. The only one that comes close is the Toronto Star, but even then it’s only a watered down type of liberal discourse, trying hard not to offend.

Nevertheless, the Conservatives portray themselves as a persecuted minority, which is quite ironic since they are constantly accusing actual minorities as trying to portray themselves as persecuted. The general accusation is that if something bad happens to a woman or a minority it’s their fault rather than the fault of society. If something bad happens to them, it’s quite reasonable to start pointing fingers.

In the uproar over the resignation of the University of BC president, Arvind Gupta, people complained about baseless speculation when a professor said that he had, perhaps, lost a “masculinity contest”. However, you don’t have to scroll down too far in the comment section to find people alleging that he only got the job because he was a visible minority.

Based on my many years of experience on the Internet, I’m going to speculate and say that the number of people who believe that there are a great number of affirmative action jobs available vastly exceeds the number of affirmative action jobs that actually are available.

When I was harassed on the Internet for filing a human rights complaint, one or two of the commentators actually said that the individual with six months of experience who took my job deserved the opportunity just because new reporters deserve the opportunity. Of course they do. They deserve the opportunity to learn through the reporter role as I did for four years before taking on the editor role. They don’t deserve the opportunity to have a qualified woman fired just because they’re a man, and then to do an inept job and disappoint an entire community. That benefits absolutely no one.

And yet, I’m the one who should have pulled up her bootstraps and stolen a paper route from an eight-year-old. Let’s face it, if it wasn’t stealing a paper route that day, it would have been something down the road like not bringing the new publisher coffee or expressing an opinion during a meeting. There’s no amount of bootstrap pulling that’s going to overcome a sexist attitude to women at work, just as there is no amount of evidence that’s going to convince #AngryCon that the Mike Duffy trial is a poor reflection on his party rather than a media elite conspiracy to get at the persecuted wealthy white male.

Backlash silences discussion about discrimination

To live on the Earth, especially as a modern human being is to do a substantial amount of violence to it. Today we call it our footprint.

Although I call myself a vegetarian, I realize that it’s impossible to live a truly vegetarian life. When the farmer plows the field, he or she is going to turn up a few dead bodies of the ground animals that were living on it. The environmental effects of my dinner plate don’t end with the production. There’s also the transportation to take into consideration.

Though I could live a subsistence existence by growing and preserving my own food, I choose not to, which makes me a hypocrite. Most of us are living our lives as hypocrites refusing to acknowledge our footprint not only on the land where we live, but on the lands of people we will never meet.

Our obsession with cheap material goods creates unhappy working conditions for people in other countries. Our dependency on resources creates global warming, which causes drought and famine in Africa.

Some of us are driven to denial to deal with the overwhelming reality of our lives. I remember having this discussion in a fourth year seminar at university. One of the most calm, accepting students in my entire year, who had never seemed to argue with anyone about anything, suddenly objected to the very idea that he was doing violence just by living. However, when faced with the evidence, he had no facts to rely on, but just kept repeating, “That’s going too far.” Eating meat, driving a car, living on native land. To talk about it was going too far.

Backlash against human rights is kind of the same thing. If you stand up for native rights in this country, you will inevitably find someone willing to angrily denounce your argument. One only needs to read the comment section on the CBC website to know it’s true. In fact, Aboriginal groups have complained to the CBC about allowing racist comments on their website. And yet, here we stand on land that we took from others, or, at the very least, we are benefiting from decisions that were made long ago and never rectified.

Though the statistics won’t back them up, there are numerous people who will deny that racism and sexism exist in Canada and reverse the blame onto the people complaining about the problem. I’ve yet to see the headline that reads, “Gender discrimination solved” or “Same opportunities given to everyone.” Without evidence, the comment section is the only place for these views.

Although I could have picked from hundreds of examples, I recently read an article about racial discrimination in the Durham Catholic and Public School Boards from Oshawa This Week. Parents of black students are complaining that their children are disproportionately being disciplined for fighting and bullying.

There are three comments under the article all blaming the students. I’m guessing the commenters don’t know the students and are completely unfamiliar with the facts of their cases. Here’s one example:

“Why am I sick of hearing that every thing they don’t like is RACISM ?? Do the crime, do the time !!! Just look around its no different any where else, Look at all the people that get shot in Toronto, They are not white !!! I wonder why !!!”

I don’t know. Maybe the students feel victimized by racism because people make random, unsubstantiated allegations about “crimes” and equate them with all the gun violence in Toronto simply because of the colour of their skin. Could that be it?

The biggest problem with backlash is it stops us from talking and looking for solutions. Who would want to come forward to talk about their struggle if they are just going to be accused of “crimes” and of trying to deflect blame? It’s difficult to address the realities of the situation if you are just going to be shouted down in the comment section.

How do we tackle racism and sexism if we can’t talk about it in a healthy way? I myself have experienced being drowned out and defamed by ignorant comments just for raising my experience with sexism in the workplace. That’s why I’m looking for solutions. Censorship of the Internet is not the answer. We need to find ways through education, media coverage and government programming to find a solution that builds dialogue rather than building up walls between us.

The Trumpification of Web 2.0

In the 1980s people loved legal dramas and police procedurals. In this world crime doesn’t pay and the people without morals always get caught in the end, even if there are a few twists and turns that try our faith ever so slightly.

By the end of it all, the killer is locked up and the police and the lawyers, our heroes, throw their jackets over their shoulders and saunter out into the evening air with some clever, parting quip.

It cost the networks a tidy sum to come up with these dramas. They had to hire the dashing cops and lawyers and pay for the writers to come up with original stories, which got harder and harder each year.

Then some evil genius came up with a plan. It’s hard to make people hate a criminal. You have to have a diabolical plot with a bit of suspense and mystery. You have to have a sympathetic victim that we can all like. You have to make your cop/lawyer hardboiled, but not so hardboiled that they are unsympathetic. It’s easy to make us hate each other. We are full of flaws. We say the dumbest things. We gossip. We try to make others look bad. What if we just took a bunch of regular people and put them in a house – or even better, an island – and let them do the dumb stuff that humans do when no one is looking. Of course, in this case, everyone would be looking. In the 1990s police and legal dramas were cleared from the prime time schedule for an ever-multiplying number of televised “reality” shows.

This mean and petty environment launched a thousand careers, including that of what, frighteningly, seems to be the Republican frontrunner. Donald Trump likes to portray himself as a business mastermind, but the truth is he was born into wealth and not losing it all doesn’t make you a brilliant entrepreneur. Nevertheless, he puts himself in the position of judge and juror of a process that either supports or ridicules the actions of individuals vying for a position with his company declaring, “You’re fired” to one contestant a week.

Another “workplace” type model, is America’s Next Top Model. Although I couldn’t stomach The Apprentice, I did watch a few clips of this show randomly on the Internet. They mostly involved the staff around the modeling shoots berating the contestants for minor infractions. In one clip I watched Tyra Banks, the host, berates a model she had just “fired” because she was smiling and not sad enough. Apparently, she was especially angry about it, because she had come from a “poor” background (her grandmother had to sew her bathing suit for the competition… or something). And, being from a poor background, the model should have been especially humble and destitute looking… or something.

Let us not forget the numerous cooking shows where the celebrity chefs engage in behaviours that would land them in court in real life.

Now, we’ve segued straight from the 1990s into Web 2.0 – the world in which everyone has an opportunity to report and judge everyone else’s transgressions whether the transgressions are legal or not.

What is the point of this kind of haranguing of individual private citizens? In this climate the title of one of these 1990s reality shows becomes even more prescient – “Big Brother.” It doesn’t matter if you did anything wrong. It doesn’t matter if you agree with someone else’s interpretation of how you should behave.

I think of that model whose grandmother sewed her bathing suit. She probably thought she was being gracious by smiling at the other contestants before leaving the stage. It probably never occurred to her or anyone else that there was something wrong with her actions until someone said there was and that person was suddenly the loudest, most powerful person in the room.

Millions of people are not surprised or offended when people take their workplace concerns to court or to tribunals such as the Human Rights Tribunal. Workplaces are full of conflict and there’s always going to be someone who loses out, just as business transactions will often land the participants in court. This is why the procedures have been set out for us.

So what does one gain by ridiculing one individual citizen for not being successful in a case in which the evidence was never even heard? Just like on network TV, it’s hard to be the dashingly handsome justice seeker doggedly pursuing his quarry for the safety of the entire city with a clever quip always at the tip of one’s tongue for one’s deserving enemies. It’s easy to be the pathetic snitch who gets to bully behind an anonymous moniker on the Internet.

 

BC Human Rights Tribunal ignores the reality of workplace discrimination

The Human Rights Tribunal pretends that it’s impossible to prove gender discrimination in the work place, unless there is some sort of sexual harassment or very obvious sexual language.

However, this attitude denies the realities of women’s experience. Yes, sexual harassment is all too common and extremely detrimental when it happens. But, it’s even more common that a woman would be denied opportunities, be subject to unexplained hostile behaviour and her comments and suggestions would be ignored and mocked. Discrimination in the workplace often manifests itself in opportunities given to less qualified people who don’t have the same gender, racial or other characteristic.

The tribunal needs to listen to women to find out how they experience discrimination in the workplace because the reality is that millions of women have experienced it to various degrees of seriousness. The fact that I was fired because of it kicks it up a notch and justified the human rights complaint, which was dismissed without a hearing on grounds that were unrelated and even denied by the employer.

By denying the right of women to have their experiences heard and recognized, the Human Rights Tribunal is not fulfilling its mandate to uphold the Code, which states that its purpose is not only to stop discrimination, but also “to identify and eliminate persistent patterns of inequality.”