By Mathew Yaworski
Unfortunately, my time with the Yukon Human Rights Commission (YHRC) is coming to an end. My placement ends after July 29, 2021, leaving me just enough time to take care of my strategic appointments (doctor, dentist, banker, replacement OHIP card) and relocating to Montreal before classes start. All of this notwithstanding my second blog post.
I need to thank the staff at the YHRC. My immediate supervisor and Acting Counsel was generous with his time, and patience, and always willing to engage with me about my problems or concerns. Everyone was friendly and engaging. I appreciated the invitation to the team’s weekly Coffee Time get together, a time to chat, relax, and recharge. Even when one of the coffee towers tipped over spilling much of that black gold on the floor, people in the room (or at least through Zoom) had good spirits.
Coffee Time was insightful. I spent some time in the Northwest Territories and knew a few things about bears, but it was nice to renew my understanding and appreciation of the different types of bear sprays. I was envious to learn about all the opportunities for outdoor activities in the territory. I was envious to learn of how my colleagues used all of their free time, especially when I had to rationalize how “free time” was a luxury that I really could not afford as a full time student.
My research continued and I wrote legal opinions relating to my findings. Things were going well until I researched the issue of vicarious liability. Some statutes contain provision(s) that allow a respondent, usually an employer in the employment context, to “escape” liability if they can demonstrate that they did not condone the inappropriate behaviour or reasonable steps to address it. Why is that? If the purpose of human rights legislation is remedial, should it not be that the employer and the perpetrator be subject to remedial (not punitive) action?
Between flash backs to my first year Torts and second year Employment Law classes, I tried to find the answer, especially why this type of language was limited to a few statutes across jurisdictions and not universal?
I don’t want to sound cocky, but I think I’m pretty good at legal research. I did a lot of legal research working in labour relations, with Quicklaw, Westlaw, or CanLii. I’ve had more practice and refined my skills since coming to McGill. I’m competitive and don’t like to lose or admit defeat. But this was a tricky topic. Eventually, I abandoned looking at case law and tried to access the Hansard. Unlike Westlaw or Quicklaw which provides a universal interface, each Hansard interface is different (ie, the Government of Canada Hansard is different from the Province of Manitoba’s Hansard).
Unfortunately, I could not find what I was looking for (some of my research was very historical) but happened to come across my former high school classmate, now counsel for a trade union in Vaughan. Congratulations Steve. He appeared before a Province of Ontario Legislative Committee and made a presentation on behalf of his employer. Ultimately, I wrote my opinion based on what I was able to find, in the time that I had to do it. If anyone from Quicklaw or Westlaw is reading this, you should look at downloading Hansard and making it more user friendly to search. Expand your business and take pity on me.
My last two assignments concern the scope of individual and organizational liability, and the enforcement of settlements. One takeaway from all the research I’ve done during this placement is to be wary of going down the rabbit hole. Granted, it is easy if your research topic is narrow or limited, but in instances where you find a lot of jurisprudence, you need to be able focus on what is sufficient to answer or address your question. There were times when I found my digging for more and more supporting cases, rather than evaluating the applicability of the ones I had already found (and cited). One sage piece of advice from my Supervisor, echoed by Professor Adamski in my Integrations and Advocacy classes was time. In the future, I will likely have more restrictive deadlines and must do the best with the time I have.
Apart from research, I have learned, and appreciated, that the Commission plays an important gatekeeper role in the Yukon’s human rights system and its complaint process. There are many steps and considerations that are required to be exhausted before a complaint is adjudicated. As a party, usually a respondent, to human rights complaints from my labour relations days, I did not appreciate the nuances of the system, mainly the strengths or weaknesses of the complaint against my client. Many complainants are not represented by legal counsel. While a complainant many feel discriminated against and inherently feel they deserve a remedy to correct the injustice they suffered, they are ignorant of the process, legal tests, standards of evidence, and the principle that he who alleges must prove. All things being equal, a respondent is not necessarily required to disprove the allegations against them.
As I reflect on my placement, I strikes me that I actually had the opportunity to do work that impacts a real complaint. I cannot divulge details, but my research may influence whether their complaint proceeds to a hearing on its merits or is dismissed. I wonder: would the complainant accept a reasonable settlement? This would almost certainly be without an admission of guilt or liability. But is this something the complainant would accept? The settlement offer could reflect the weaknesses of the respondent’s case and be a quick fix – an avenue to avoid a negative decision and perhaps larger financial liability. Then again, the respondent might have a very strong case and their settlement offer is strategy to avoid the expense of a hearing. What about the complainant? If their case is weak, would they accept what the respondent offers, even though it would likely be less than what they were seeking? Are they so steadfast or dogmatic in their belief that they were wronged that they will accept nothing less than their day in court with a public decision that memorializes their righteousness? I have been on both sides of fence in the past; I worked with management to settle where we were weak or to avoid the nuisance of a hearing. I have also reluctantly gone through a hearing (including travel, the logistics of witness prep, motions and objections, and the scrutiny of document production) when I knew we were in a strong position but the complainant was adamant that they were in the right and would accept nothing less than a public decision echoing their divinity and demonizing my client.
Here is my confession. With this actual complaint, I would like to see a decision. I think both sides have a credible argument. My attitude is not gospel and how much weight, or doubt, you want to give my assessment is up to you. Unfortunately, the world of litigation is not an academic exercise. It is expensive, time consuming, and an emotional investment since someone wins and someone loses. My research had mixed results and I do not know what the outcome would be.
So here we are, back at the beginning of my first entry. I do not know the answer.
The saga continues.