Barbara Hall or Howard Levitt - Who Ya Gonna Believe?

My Money is On Howard Levitt

Some of you might recall a blog entry from Pete Vere over at Northern Tequila in June, called Lynching the Context. Just in case you don't, here it is linked again for your review. He spoke about how Jennifer Lynch and Pearl Eliadis, in the particular instance he referenced, failed to deal with things in context, and so missed the real point, of life, really, but of HRCs in particular.

Well, I think I figured out why the Jennifer Lynch's. Barbara Hall's and the like are undoubtedly going to miss the context of things. They have no foundation for it. Follow along with me here, and I will see if I can make my point.

The other day, July 29, Howard Levitt wrote about Employee's rights, and a policy that the Ontario HRC had put forward as gospel. Barbara Hall rebutted him, and he then rebutted her, but I am getting ahead of myself, but really just trying to set the stage.

When they both speak up about an employee's rights who is likely to be believable, and who is right? And as a sidebar, who is likely to be able to deal with it in proper context?

You all know who Barbara Hall is. She is in charge of our Ontario HRC, having been given this sinecure, more sin, but quite secure, for pandering to the Liberal party for the last few years. She does have her own wikipedia page here, where you can read about her less than glorious past, because I really don't find it interesting enough to write about. Frankly, she has never done anything in the real world, and that is why I believe that she is so out of touch with context.

But who is Howard Levitt? Howard Levitt is counsel to Lang Michener, one of the pre-eminent law firms in this country, and it says this among other things about him on their site as to his qualifications: "Howard Levitt is possibly Canada's best known and most quoted authority on employment law. He is the author of Canada's leading dismissal text book, The Law of Dismissal in Canada and the recently published The Law of Dismissal for Human Resources Professionals. He is also Editor-In-Chief of the national law report, The Dismissal and Employment Law Digest, which covers every dismissal and employment law case across Canada. The text and accompanying law report is cited in more decisions across Canada than is any other text . It is used by practitioners, law schools and judges across Canada." Mr. Levitt has the context of years of expertise in the field, as well as years of the business of being a for fee consultative lawyer, where you essentially eat what you kill.

To put it mildly, when it comes to labour law, this man is top drawer, among the sharpest knives there is. He is an expert. Barbara Hall and the Ontario HRC are not expert in this area, but want you to believe they are. In fact, they carry a big stick that they use to prove that they are, even when they aren't, and therein lies the problem. She has no context for pushing forward an agenda of imaginings and rules for labour law in the province of Ontario, yet she feels comfortable to so do.

There are people who know what they know, and better people who also know what they do not know. But the really dangerous people are those who do not know what they do not know, because they can pretend to know everything.

The Barbara Hall missionaries for imaginary rights have invented the concept of Family Status
as a codified right. However, as Mr. Levitt, almost certainly notes, it doesn't happen to agree with the law, but that doesn't usually stop Barbara Hall, anyway.

Here is the fake Family Status policy:

The Ontario Human Rights Code protects specific familial relationships from discrimination through the grounds of marital and family status. The Code defines “family status” as “being in a parent and child relationship.” This can also mean a parent and child “type” of relationship, embracing a range of circumstances without blood or adoptive ties but with similar relationships of care, responsibility and commitment. Examples include parents caring for children (also by adoption, fostering and step parenting), adults caring for aging parents or relatives with disabilities, and families headed by lesbian, gay, bisexual or transgendered persons.

And here is the part of the policy as it relates to employment situations:

Persons in a parent-child type relationship have a right to equal treatment in the workplace. Employers cannot discriminate in hiring, promotion, training, benefits, workplace conditions or termination because a person is caring for a family member.

Employment decisions should not be influenced by stereotypes about caregivers. Those who provide family care, or are perceived to, may wrongly be considered less competent, committed or ambitious than others – often due to gender stereotypes – and may be passed over for promotions, learning opportunities and recognition.

Where workplace structures, policies, procedures or culture exclude or disadvantage persons with caregiving responsibilities, employers have a duty to consider adjustments to reflect such needs. This may involve, for example:

• providing flexible scheduling
• permitting employees to take leaves of absence to care for family members who are aging, ill or have a disability or
• allowing alternative work arrangements.

Creating a flexible and inclusive workplace benefits all employees, and advantages employers in hiring, retaining and getting the best possible performance from employees.

But Mr. Levitt took her to task for this policy in the National Post a few days back here. The Headline said "Human rights policy not the same as law", and the skewer was in from there. Mr. Levitt explains that this so-called policy of the Ontario HRC is not law, but a misrepresentation of the law, for purposes of political and business gain. Strong words, but par for the course for the folks at the Ontario HRC. Business as usual, as it were.

Essentially, the policy proves once again that the Ontario HRC is out of touch with the reality of business in Ontario, and the people of Ontario. As Mr. Levitt states:

But the Commission's policy is not the law. Employment law requires employees to perform their workplace functions notwithstanding their parental or other personal obligations. Employees are required to organize their childcare responsibilities to permit them to reliably attend work and competently perform their job functions. It provides no dispensation for the verisimilitudes of normal parental responsibilities.

I wonder how Ms. Hall and her employees missed that part of the law when they drafted their policy, or if they even cared.

Mr. Levitt cites examples where it is appropriate for an employer to attempt to accommodate an employee, and areas where it is not necessary. However, he also recommends dealing with accommodation informally, stating accurately that it is not the employer's job to solve the employee's individual day care issues. He also provides advice for when escalation occurs for problems that do not resolve easily to minimize disruption and conflict, all very logically, with no Form 1 complaint required.

Of course, that kind of resolving of conflict would not be good for Barb's burgeoning business, and so she shot back with a sort of rebuttal on July 31, entitled "HRC policies and the law" here.

She starts by saying: "Howard Levitt is mostly correct." Then a bunch of blah, blah, blah. But her conclusion is both telling and chilling. Here it is:

To suggest, however, as Mr. Levitt does, that our policies don't "actually reflect the law," is plain wrong. OHRC policies are firmly based on the protections of the code, other relevant legislation and current case law. They are updated as the state of the law changes. Commission policies are applied and their validity tested on an ongoing basis, at the Human Rights Tribunal and in the courts. Writing and publicizing such policies is part of our job, under the Human Rights Code.

Well, if what Mr. Levitt said was mostly correct, then the first statement could hardly come to the conclusion that the policies not actually reflecting the law is plain wrong, unless the mostly correct part was in his grammar only. But, the scary part is that the "policies are applied and their validity tested on an ongoing basis, at the Human Rights Tribunal". The HRT and the HRC that investigates them in the first place is all part of the HRC sausage making machine, and is not a real court system, using real rules of evidence to come to real decisions.

But, Mr. Levitt hardly needs my help to hoist Madame Hall on her own petard. In fact yesterday, he was really on his game and did a twofer, skewering the current mayor David Miller for his mishandling of the Toronto strike recently, and then put one through the uprights on the former mayor, now Ontario HRC queen, Ms. Hall. The Toronto strike issue is tragedy, and I would really rather comment on comedy, so I will leave it to others and concentrate on the disembowelment of Frau Hall.

Ms. Hall implied that she had done due diligence in coming to her policy and that it was up to date with current law, blah, blah, blah. Not so, says Mr. Levitt. Decidedly not so. For example, he checked to see if she had had any contact with the experts in the field, all acquaintances of his, and all within a stone's throw of Ms. Hall's offices in Toronto. Nary a peep, they all said. So, seems she consulted the mirror on the wall, or as Mr. Levitt suggested "the broad range from the uninformed to the politically motivated." Ooh, that truth's gotta hurt.

In taking her to task further, Mr. Levitt concluded with the following paragraphs:

Responding to her point, the commission's policy states that employers can be forced to change "inflexible, excessive or unpredictable work hours," citing a 1993 (hardly current) Human Rights Tribunal decision, Brown v. MNR.

Notably, the policy does not go on to tell readers that this very tribunal decision was rejected by the British Columbia Court of Appeal in 2004 (more current), which stated that "in the vast majority of situations in which there is a conflict between a work requirement and a family obligation" there is no discrimination.

The commission's policy is misleading and, more dangerously, its half-truths are certain to chill any Ontario business owner or manager who reads it. I suggest that employers largely ignore such internal policies and adhere instead to the actual rulings of applicable tribunals and courts. I appreciate that obtaining legal opinions costs more than reading free government reports, but following the politically motivated publications of left-wing bodies will cost your business far more yet.

It is interesting to me to see how knowledgeable people are now speaking up about the abuses of power going on at the HRCs of this country. It is, of course, about time and desperately needed. These people, like Mr. Levitt can put things into proper perspective, or context, as it were.

It needs to be noted that the HRCs and HRTs are not real courts, and that evidence rules do not apply, so that when their decisions are appealed to higher courts, the higher courts have to look at the case as though it were a brand new case, because it's pretty hard to tell how or why they decided what they did. In other words, their decisions are not like real decisions. They are for sh?t. It is time for a change.