Ontario Human Rights Proceedings: Duty to Accommodate

The Ontario Human Rights Tribunal(“OHRT”) will sometimes have cases raising duty to accommodate matters. The OHRT recognizes the duty to accommodate as being a co-operative and collaborative process. All parties to the accommodation process have obligations. The applicant, who is seeking accommodation must provide sufficient information to allow the respondent(s) to understand the nature of the disability. The duty to accommodate would require, at the least, the party seeking accommodation to act in a reasonable and cooperative manner.

The failure by a respondent to take the appropriate steps in the procedural duty to accommodate is a violation of a right under Part 1 of the Ontario Human Rights Code. It is up to the party who has the duty to accommodate to determine how the individual can be accommodated. While the complainant may be in a position to make suggestions, the employer, for ex., is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. The complainant can’t expect a perfect solution.

It is apparent from the comments above that clear communication flowing from both sides is important in the efforts to successfully accommodate and invest in the relationship at hand going forward.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice a lawyer should be consulted to advise on the specific circumstances of your case.

Provocation in Criminal Law

The four components of the defence of provocation are:

(1) there must be a wrongful act or insult;

(2) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control;

(3) the accused must have acted in response to the provocation; and

(4) the accused must have acted on the sudden before there was time for his or her passion to cool.

In this area, a contextual analysis is very important. Putting the matter into its contextual perspective may assist in breathing an “air of reality” into the provocation defence.

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Intervention in Ontario Human Rights Tribunal Proceedings

Under Rule 11 of the Ontario Human Rights Tribunal (“Tribunal”) Rules of Civil Procedure, the Tribunal may allow a person or organization to intervene in any case ,at any time , on such terms as the Tribunal may determine.

There are a number of factors for consideration in assessing a request for intervention including :

a. Whether the intervenor has a significant interest or special contribution to make on the issues;

b. Whether the intervenor is likely to provide assistance to the Tribunal that will not otherwise
be provided;

c. Whether the intervention will unduly delay, disrupt or prejudice the determination of the rights
of the parties; and

d. If intervention is appropriate, are there conditions that should be placed on the inter-
vention. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the circumstances of your case.

Criminal Harassment by watching or besetting: Ontario

To prove the offence of Criminal Harassment by watching or besetting, the Crown must establish the following factors:

1. That the defendant engaged in the prohibited conduct without any lawful authority to do so;

2. That the complainant was harassed;

3. That the conduct caused the complainant to fear for his or her safety;

4. That the complainant’s fear was reasonable , in all of the circumstances; and

5. That the defendant knew that the complainant was harassed or was reckless or willfully blind
as to whether he or she was harassed.

Under this offence, “Watching” is passive in nature whereas “besetting” is active. Watching is continually observing for a purpose and besetting has a physical element of approaching , importuning or seeking to argue with another person. *

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Statutory Interpretation

Cases can have many legal strands. Sometimes the cases can be resolved simply on the basis of case law. But other times statutes or regulations also apply and must be interpreted. The final decision may combine various legal strands to arrive at the conclusions on the issues argued.

Caselaw confirms that statutory interpretation can’t be based solely on the wording of the legislation alone. Instead the approach that should be followed was highlighted by Elmer Driedger in his work Construction of Statutes (2nd ed, 1983) as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read
in their entire context and in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament.

Accordingly, statutory interpretation requires a view through various lenses not just the words of the Act. This rounds out perspective on the interpretive issues at hand. The above highlighted approach to statutory interpretation recognizes the important role that context assumes when courts interpret the words of a Statute.

In R. v. Stipo 2019 ONCA 3 at para. 176, the Ontario Court of Appeal stated:

“..No statutory provision is an island in itself. Its words take their colour from their surroundings. All issues of statutory interpretation involve the key question of what Parliament intended. To discover what Parliament intended , we look at the words of the provision, informed by its history, context and purpose…”

So to resolve a case, we may have to not only review and analyze caselaw but also effectively interpret relevant statutes and use our analysis on both fronts to marshal persuasive arguments.*

William Poulos, Barrister
* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to provide advice on the specific circumstances of your case.

Breaches of Settlement agreements: Ontario Human Rights Code proceedings

Under section 45.9(8) of the Ontario Human Rights Code , the Ontario Human Rights Tribunal (“OHRT”)has a broad discretion to make any order that it considers appropriate to remedy a contravention of a settlement agreement reached in ORHC proceedings. Although the discretion is described as broad, it’s exercise is tied strictly to the harm that is caused as a result of the contravention.

The OHRT has noted that contractual principles provide an appropriate framework for analyzing contraventions of settlement. In an appropriate case, this could include damages for mental distress and/or punitive damages. The OHRT considers the following two factors when determining whether it is appropriate to award compensation for additional harm caused by a breach of settlement:

1. Whether it is reasonably foreseeable at the time the settlement was entered into, that
harm, emotional damage or injury to dignity , feelings and self-respect would arise if
a term or terms of the settlement were breached and;

2. If so, whether any harm, emotional damage, or injury to dignity, feelings and self-
respect did in fact arise as a result of the contravention.

Settlement agreements are to be complied with and respected. Failure to do so, could lead to further proceedings and remedial relief to the harmed party. Given the nature of the proceedings to begin with, this is especially an area where it is important not to compound any existing harm and add insult to injury.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Interim Remedies and the Ontario Human Rights Code

The test for awarding an interim remedy in Ontario Human Rights Code (“OHRC”) proceedings is described in Rule 23.2 of the Rules of Civil Procedure :

The Tribunal may grant an interim remedy where it is satisfied that:
(a) the Application appears to have merit;
(b) the balance of harm or convenience favours granting the interim remedy requested; and
(c) it is just and appropriate in the circumstances to do so.

Normally, the Tribunal’s power to order a respondent to do, or refrain from doing something, is contingent on a finding of a violation of the OHRC. Interim remedies are extraordinary as they constitute an order to do, or refrain from doing , something in the absence of a finding that the ORHC has been breached. Because of this, the applicant bears a significant onus in establishing that the Tribunal should award an interim remedy.

The ORHC is remedial legislation. The main consideration in determining whether to award an interim remedy is whether the interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of the hearing, should a violation of the ORHC be established.*

William Poulos, Barrister
* This legal blog is not a substitute for legal advice. Should you require legal advice a lawyer should be consulted to advise on the specific circumstances of your case.

Civil Contempt Sentencing in Ontario: Aggravating and Mitigating factors

You have chased a party who has disrespect for court orders. The long arm of the law has finally caught up with this party. Your client’s interests have been prejudiced and a finding of contempt has been made. You are getting ready to make submissions at a Civil Contempt hearing for appropriate sanctions.

Or, from another perspective,

You have been found in contempt of court. You have to attend court now to determine what sanctions will be imposed on you.

In either of the above scenarios, the Court will want submissions on any Aggravating or Mitigating factors that may impact upon the final sanctions to be imposed.

The following are some examples of Aggravating and Mitigating factors found by Ontario Courts. The list is not exhaustive:

Aggravating Factors

@ a deliberate course of conduct over a lengthy period of time;

@ Numerous breaches of court orders;

@ Repeated acts of contempt;

@ Benefiting financially from the contempt;

@ Showing disrespect for the court including for ex. lying to the court, offering an insincere
apology and giving only the appearance of complying with orders.

(See Devathasan v. Ablacksingh 2018 ONSC 7557, at para. 28)

Mitigating Factors

* No evidence of previous defiance of any court order;

* First conviction of contempt;

* Purging or attempting to purge the contempt;

* A sincere apology or showing of remorse to the court;

* Admitting the breach or breaches;

* Medical conditions may be mitigating but not if they can be accommodated in prison (ex.
if contemnor can receive medication in prison)

* The existence of separate sanctions for the same factual circumstances such as a fine from the
Ontario Court of Justice;

* There are dependents who rely on the contemnor;

* Efforts to mitigate damages on other parties.

( See Devathasan at para.24).

Civil Court orders must be respected. Failure to respect and abide by the Court orders in letter and spirit can bring you back before the court fighting to avoid further court orders , ex restraining orders, fines, in serious cases, jail time, and to comply with any other order the Justice considers necessary.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted on the specific circumstances of your case.

Lawyers and Conflict of Interests

Lawyers occupy fiduciary positions with respect to their clients. They can’t act in a conflict of interest and at the same time hope to represent the client’s best interests. Conflicts of interest may be obvious at the outset or they may manifest as the proceeding unfolds. There may be many ways in which they surface. Key to maintaining the fiduciary relationship and upholding the integrity of the lawyer-client relationship and the administration of justice, is being able to spot and be sensitive to when a conflict of interest may arise or whether one has arisen. The Courts have the power and discretion to disqualify lawyers from representing a party , in conflict of interest situations.

Conflicts of Interest can arise in different scenarios. The Conflicts may arise, for example when a lawyer represents more than one client in a multiple retainer. Or when a lawyer is retained on a case that involves acting against a former client. A change in law firms ,where a lawyer has knowledge of a client’s legal affairs, and joins a law firm acting against the former client is another scenario. Yet another is when a lawyer is in a position of having to give significant or controversial evidence in a case in which he or she or an associate acts as counsel. (See Bose v. Bangiya Parishad Toronto 2018 ONSC 7639, at para. 84 for a discussion of different types of conflict of interest). There are general scenarios where conflicts of interest arise as set out above. Yet as in many legal situations and different factual circumstances, the categories of Conflict of interest, in my view, are not closed.

As is the case with any legal issues, of key importance is the ability to spot the issue at the appropriate time and better yet, anticipate the issue if possible, and take steps consistent with maintaining the integrity of the lawyer-client relationship and the administration of justice as a whole. Failure to spot the issue jeopardizes the lawyer’s fiduciary responsibilities and the reputation of the administration of justice. This is an area where being pro-active as opposed to reactive can pay material dividends. Integrity dividends. Reputational dividends. Fiduciary dividends. And yes even monetary dividends, where significant costs and wasted time are saved.

William Poulos, Barrister

*This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

Trial Judges: Managing trials and the Right to Cross-examine

A trial judge’s role is multi-faceted. They must not only bring their procedural and substantive knowledge of the law to the case and analytical skills, but also be in a position to act as a Manager: Manager of a trial, for example. This is an art, as this management role may come into play in obvious situations and less obvious ones. An experienced justice will apply the management duties with the right touch using fairness/justice as key guiding markers. Recently, in a Criminal case, the Ontario Court of Appeal commented on managing trials and cross-examination:

“A trial judge has a duty to manage a trial and is responsible for ensuring that it is conducted in an orderly manner according to the rules of procedure governing the conduct of criminal trials..The legitimate scope of cross-examination is not without its limits. A trial judge has the right and the duty to prevent a trial from being unnecessarily protracted by questions directed to irrelevant matters..A trial judge is entitled to curtail questions by defence counsel that are irrelevant, prolix, and repetitive..The right to cross-examine a witness is not absolute or limitless..An accused person is entitled to a fair trial , not an endless one…” ( R. v. Ivall 2018 ONCA 1026, at paras. 166-168).

A trial judge’s management powers must always be on guard to ensure process and the final adjudication has been arrived at in an efficient, fair manner. Just as a business manager is very interested in preserving resources and ensuring the business of the corporation does not stray into unproductive, cost consuming areas, a trial judge has an important duty as the manager of his or her court to curtail unproductive, resource consuming behaviour.However in the courts there is no final balance sheet or income statement. The key measure is justice being done and seen to be done. Trial Management goes a long way to serving the latter goal and is an actual expected duty.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.