To HRC or Not to HRC

Responding to Comments

I wrote a piece back on May 30, 2009 about an HRC case that did not occur, where a young woman, who is my second cousin, has a rare mildly disabling disease that is visible and causes her discomfort. She was fired from her job as a server in a local restaurant and got on with her life, refusing to get into the HRC schmozzle of process. I lauded her forbearance and determination.

Well, the other day I got a comment to the post that I responded to and another response back from the Anonymous commenter. Because the comments were thoughtful, I felt they warranted being part of another post and here we are.

Here is the first comment:

It is great that this women eventually found a great place to be employed. However, the purpose of a human rights investigation is not limited to that individual (the young women in this case). Instead it involves all members of society, those who have a disability and those who would discriminate against them.

I do believe that each indivdual should do what is best for them but feel the ones that should be applauded are the ones who are willing to go through that grueling human rights investigation process to hold people accountable for discrimination.

This article seems to suggest that rolling over rather than standing up is what is the way to go...to that point I would have to disagree.

But I would still agree with the last line "Good for you, Lizzie"!!

I responded as follows:

There is no gruelling human rights investigation process for the Complainant. It is only gruelling and expensive for the Respondent.

I have a disability. Today, I cannot leave my house because of it. With my disability it is not practical for places of work, or institutions to accommodate me. I don't need them to accommodate me, and I do not need to play victim because they don't or can't. I don't even intend to tell them that I am disabled.

I would rather live my life as free as I can than be a victim.

To think that the government is any "victim's" friend is a fallacy. The HRCs run a sausage making machine, not a justice machine, and it stacks up rights as it makes them up and as it chooses, so that my rights as a disabled person would trump my rights as a Christian. I refuse to give them the chance.

And Anonymous responded back to me again with more thoughts here:

Asserting your rights is a far cry from becoming a victim and I would argue It is empowering. The Duty to Accommodate only extends so far. And if you simply can't work then of course they cannot accommodate you.

I am stunned that you, as a disabled person could be anti-HRC(now HRT) they advocate on behalf of individuals who are routinely discriminated against in all aspects of society, especially employment. I am working with a woman who has a disability and was fired for taking 6 month Medical Leave of Absence to receive treatment and to recuperate...yes fired for being disabled. Instead of rolling and 'living her life' she is standing up for her rights and demanding to be treated fairly. This women works with people with disabilities, and so do I, and find her determination inspiring. She is standing on principle. And this process is gruelling when you have the issues to deal with that she has. The way you talk of it being gruelling for the Respondents makes me think that you were one. I am glad it is exhausting to those who would strip the rights and dignity from the disabled Canadians.
I would think that someone with a disability would condemn the businesses and individuals who rob others of their Human Rights. Keep in mind that HRC stands for Human Rights Commission or as it is now referred to the Human Rights Tribunal. Instead of targeting them for trying to protect Canadians from Human Rights Violations why not call out the people who are continuing to discriminate against the disabled and other groups.

Don’t Shut Up....Stand UP!!!!

Well, I think the thoughts of Anonymous are meaningful and worthy of further thought and comment. So, it being my blog, I get the last say, even if I have to wait out Anonymous (tongue in cheek).

I have contended since I started writing this blog that I am more interested in the TRUTH, than in being right. Hence, I take what Anonymous says seriously.

"A" suggested that I have been a Respondent. To date that is not the case, and I hope it never will be. But, I have seen the process up very close. Two friends of mine have been victimized by the process, one in Ontario and one in Alberta. I have never disclosed the name of the friend in Ontario because her case is ongoing, but my friend in Alberta is Stephen Boissoin. You can read what I have written about both cases, as it is voluminous.

"A" is stunned that as a disabled person I am anti HRT here in Ontario. You bet your sweet ?ss I am anti HRT, and I have made my reasons pretty clear about that for the last several months.

But "A" pointed out the story of a person he/she regards highly who is disabled:

I am working with a woman who has a disability and was fired for taking 6 month Medical Leave of Absence to receive treatment and to recuperate...yes fired for being disabled. Instead of rolling and 'living her life' she is standing up for her rights and demanding to be treated fairly. This women works with people with disabilities, and so do I, and find her determination inspiring. She is standing on principle.

I know nothing about the case so cannot comment on specifics. However, if there are grounds for fighting the dismissal, the HRT is not the place to go. There are good laws in this province to protect us against illegal hiring and firing practices. "Demanding to be treated fairly" is an interesting perspective, because it is only in the eyes of the one who thinks he/she is not being treated fairly.

You may recall my posting on ADGA, back in May 2009 where a new employee lied when being hired about his disability, on which basis he would not have qualified for the job he applied for. He went over the wall, was fired and the Ontario HRC/HRT gave him a bucket full of money for being a disabled liar. That to me was not principle, but lying to get what you want. I could do that to get a job, knowing that I would get an HRT tax free pay check in the end, but that is immoral and I cannot participate in something like that.

ADGA is one example of many cases I have reviewed where the liberals at the HRT beat the stuffings out of Respondents, regardless of the rightness or wrongness of their cause, do not use any meaningful evidentiary procedures to come to their determinations and then find in favour of the Claimant if the Claimant fits into one of their discriminatory boxes. I do not want to be a party to that.

But, I am not saying I am rolling over and playing dead either. My employer did not fire me, and has not fired me after almost 6 years of disability, because they are a good company. I also receive benefits from an insurance company that supplement my very reduced wages, and my wife and I are living within our means. We have a court claim in against the driver that hit me, and it has not settled in the almost 6 years, and may take another year or 2 to be finished as well. My lawyer has been in touch with my employer as needed, and if they had terminated me, I would not have laid down, but on legal grounds not on grounds of some cooked up discrimination.

But A's concluding comments are important ones to think on and to respond to:

I would think that someone with a disability would condemn the businesses and individuals who rob others of their Human Rights. Keep in mind that HRC stands for Human Rights Commission or as it is now referred to the Human Rights Tribunal. Instead of targeting them for trying to protect Canadians from Human Rights Violations why not call out the people who are continuing to discriminate against the disabled and other groups.

Don’t Shut Up....Stand UP!!!!

Well, A, I have now about 300 posts on my blog, most of which are about HRC/HRT incompetence, and meddling into our society. So, I am standing up, not shutting up, just not agreeing with you.

I do not see businesses and individuals robbing others of their Human Rights. I see people that make mistakes innocently, or sometimes at the behest of, or behind the guise of a corporate veil. We have courts to protect us from illegal activities, and abuse of others.

But mainly I see HRCs/HRTs redefining human rights far beyond our Charter of Rights and Freedoms, and denying me my rights so you can have yours, not you particularly, but the collective you that is politically correct for the moment.

I do not trust the government to protect my interests. I accept that they will operate to their own agenda, which is self protection and then expansion.

When it comes to dealing with government directly I agree with author P.J. O'Rourke:

Giving money and power to government is like giving whiskey and car keys to teenage boys.

The Costs of the HRCs - Direct & Indirect

A Brief Look at The Costs of our HRCs

There are costs to the work (work - that's a misplaced word) that our HRCs undertake allegedly on our behalf. There is the direct cost of the HRC itself, and there is the indirect costs born by the Defendant, and to a some extent by the rest of us.

Direct Costs

I was curious to see if I could figure out what the HRC industry spends of our tax dollars in a year. So, I went to each HRC web site. Nunavut does not have their own HRC yet. They work their problems through the NWT HRC. Many of the HRCs have their financial statements in their annual report. Some are part of another ministry, and had to be located there. Reporting standards varied, from one number for the whole, to greater detail.

Bottom line here. The HRCs, including provinces, territories, and Canada total about $77 million annually. There is some guesswork here, since the last financial statement I could find for the Canada HRC was 2002. That is only about $2.32 for each one of us on our annual tax bills. Personally, I'll take the cash if it is offered.

Indirect Costs

All indirect costs of our HRCs are not able to be measured. When I call them indirect, I mean it only from the perspective of the HRC itself. ie. They never see it, or probably care about it.

Legal Fees

The most common of these costs is Legal Fees. Ted Kindos has spent north of $40,000 to defend a nonsense case about a licensed pot smoker at his place of business. Ezra Levant has spent significantly more than $100,000 to defend himself against the nuisance claims made against him over the last few years.


Awards and Interest

Cases when completed often result in an award to the Complainant, with interest calculated from some earlier date. A minister in PEI in a case I will review sometime soon was awarded $600,000 plus interest for lost wages and pain and suffering. In ADGA which I reviewed in an earlier post, the Complainant got about $80,000.

However, most cases settle for smaller amounts before they get to the actual hearing stage. As Ezra Levant titled his book, these are shakedowns. For a nuisance payment of $5,000 to $20,000, plus some other pound of emotional flesh, the complainant walks away with a tax free bonus, and the Defendant gets to crawl away.

Non Financial Award Costs

HRCs tend to be attempting to remediate egregious behaviour on the part of the Defendants, and so they tend to order them to undertake sensitivity training, or something similar. As well, particularly for businesses, they like to get them to put their staff through this training, make them develop training materials in case they should ever again hire someone like the person who complained about them in the first place. Of course, these ativities must be undertaken with consultants approved by the HRC. I smell a sub industry here.

In the case of Viola Landry and the Popeye Restaurant in Geraldton Ontario, she had to put cards with the Human Rights Code on the tables to help her customers not discriminate against each other and her staff. I wonder what happened to the cards after she lost her business.

Emotional and Other costs

This is the cost that cannot be quantified. I watched my friend, the grade school principal, having to retire early because of the deands on her health, of seeing her life's work and labour of love torn apart because she stood up to a loud mouthed parent of the wrong colour.

I listened to John Fulton who owns 2 health clubs in St. Caherines, and hopes he still will after the transsexual who he couldn't accommodate on the spot in his Women's Only Club decided to make a case of it. Mr. Fulton has built his business from scratch over 25 years, and is active in the community supporting worthy causes. Will be able to when this is done, not just financially, but with the emotional cost of it all on him.

Viola Landry's business was not particularly strong when her case started, but she was doing her best to make it work. She closed it down last year, and had to seek work elsewhere.

This Emotional and Physical cost on the bodies and minds of the Defendants of these actions are a burden that our society will bear into the future. As humans, we do not wake up each day with renewed energy, unhindered by the challenges that we faced yesterday or yesterday's yesterday. No, we carry the burden of traumas in our life with us, often forever. The burden may be reduced by therapy with the right counsellor, another indirect cost. But, once that emotional and physical energy has been spent, it often cannot be recovered. We are seeing more cases of chronic fatigue, and autoimmune problems, particularly among those who have carried emotional burdens beyond their own ability.

Will Ted Kindos, John Fulton, Viola Landry end up retiring earlier than they otherwise might have? I would not be surprised that the traumatic burden of their HRC cases will impact their long term physical and mental health. I saw it with my friend the principal.

Can our Country, Provinces and Territories afford the cost of second hand smoke that is coming down the pipe from these cases?

People in our country should be free from discrimination, including the Defendants and this wierd process that makes them into victims.

This system is seriously broken.

The Truth Will Set You Free, But Holding Some of it Back Will Get You The Cash

ADGA Group Consultants Inc. - Ontario HRC

I felt very uncomfortable with this case when I read the decision, and have agonized over this posting. Although I can empathize with the Complainant and his disability as a disabled person myself, I cannot condone what he did and what he failed to do, and even worse than that I cannot in any way justify what the Ontario Human Rights Tribunal put ADGA Group through for 6 years over this case. The purpose of this blog is to try and discern the truth out of what is happening, but to find that the truth is ignored or glossed over in favor of a commitment to an answer from the get go is really depressing.

You can read the entire tribunal decision along with many of the gory details on which it turned, at: www.canlii.org/en/on/onhrt/doc/2007/2007hrto34/2007hrto34.html

Here is the Reader's Digest version.

First a little background. The timing is September 2001.

Does anybody remember what happened on September 11, 2001 in New York City, the Pentagon, and the Pennsylvania countryside? Think tall buildings falling down. Think Terror. Think airplanes. Think "Our world will never be the same." Now think high alert for the US Military and for its friends and their military, particularly its closest neighbor. That would be us. Remember us. O Canada. Or is it Oh! Canada?

Canadian Military. Weapons Systems. Highly Sophisticated, and highly in demand. Failure is not an option. One of the things that makes these weapons systems work is computer software, and that software is as sophisticated as the weapons it drives and must be foolproof. Which in this particular instance means that it must be rigorously tested through all possibilities, and under a lot of time pressure and stress, in our post 9/11 world.

ADGA Group Consultants Inc. is a company that does that work for the Department of National Defence (DND). At the time in question, they derived about 65% of their corporate revenue from DND. One of their projects at that time was testing the software involved in weapons systems. How's that for being on the hot seat?

Enter Paul Lane a Quality Assurance Analyst, with a reasonable resume, but also a disability that he hid from ADGA during the interview process.

About 3 years prior to interviewing with ADGA, Mr. Lane was diagnosed with bipolar disorder, though he said he was aware of some of the signs of the condition prior to that time. Bipolar disorder is thought to occur in 1% of the population and maybe up to 6% to some degree. As a disability it is one that is triggered possibly circumstantially or by body chemistry or by both. Life can be very normal, and with little or no warning, at least in the control of the individual, it can become like a roller coaster ride that can only be taken alone, and must be very hard for loved ones to observe, and incredibly difficult for the bipolar individual. In Mr. Lane's case he later said that his roller coaster rides could last 3 days to 3 months.

But, Mr. Lane also knew that in the event that he were to enter into a pre-manic phase heading towards the manic phase, he needed someone to be watching out for him, and to bring into the picture someone he trusted, his wife or his doctor. Isolation would be his worst enemy. It is believed that an informed and trusted individual by the bipolar person can help the bipolar person reduce the length and depth of the manic and depressive phases, and possibly even avoid them.

He did not mention that he had bi-polar disorder. He later said he didn't mention it because he figured they wouldn't hire him. He was probably right. However, by keeping this secret, he set himself up for the big manic depressive episode that he had after his firing, because he was on his own.

ADGA had asked about sick days taken in the last year, and Mr. Lane was less than truthful about how many he had had in the previous year. He didn't think they had a right to ask that question. With the pressure they were under to get their work done for our military, why would they have a right to know if an employee they were going to hire was going to be dependable to show up for work regularly? Hmmm!!

As well, in his interview, there was a discussion about handling stress. In the Decision it was reported: "It was made clear during the course of the interview that the job could be stressful at times. Mr. Lane indicated that he was used to working under pressure and multi-tasking and that stress was an occupational hazard in the information technology sector." There was another opportunity for Mr. Lane to be open and honest with ADGA about his needs, but he wasn't.

As it turns out, bi-polar people don't always handle stress real well. It is one of the big triggers for episodes. They can handle it better if the people around them are aware and make accommodations for them, but it is still challenging, and when they handle it badly, it can be very bad for them, particularly, and in this case, it did not go well for ADGA either. Oh, and by the way, others certainly can't help if they don't know you need the help.

In 1998 and 1999, there was another stressful situation going on in the computer field, though no lives were probably in jeopardy. We called it Y2K. There was a drop dead date, and lots of work that had to be done. I was involved in that, and in my position in a public computer consulting company managed project managers and when there were not enough project managers managed projects myself. Everybody was stressed to the max, and we hired people to the best of our abilities, who could work to the best of theirs. However, we had no tolerance for people who were not honest with us, because they jeopardized our work and our relationships with our clients, and we terminated one person who lied to us and more than one incompetent along the way. We did not have one spare moment to babysit someone who was not able to get the job done we had hired them for and they had told us they could do.

So, Mr. Lane started work on Monday October 22, 2001, and had to spend time reading manuals and documentation for a while to get familiar with systems and so on. He did that but, he also spent some of his time socializing with others, and his behavior was on the edge of inappropriate from time to time. On the 24th, he met with a supervisor and alluded to a need for her to advise him if she felt his behavior was in any way inappropriate, but did not mention that he had bipolar disorder at that time.

Then on Friday, his 5th day of work, he met with the supervisor again, and this time was more open and honest with her. He pointed her to the Mayo Clinic site for its discussion on bipolar disorder, which frankly is bereft of any real information that would have helped someone from ADGA in working with Mr. Lane. He gave her a strategy of how to deal with him should he have pre-manic episodes or start into a manic episode. He told her that depending on how soon the condition was caught he could be out from 3 days to 3 months of work. But, he left feeling that he had given her a strategy that she could deal with this new revelation.

Canada looked at the time like it was heading off to war at any minute, and did deploy to the Far East as we all know. So, this company is testing weapons systems software under extreme pressure, and some new guy, just hired in off the street, goes to his boss, and says: "When I applied for the job, I lied. I did not tell you the truth about my ability to do the job. So now, you need to watch out for me, and here's how you can do it."

So, on Tuesday next they terminated him. But, they say they terminated him because his work effort was not there.

It is too bad that Mr. Lane has bipolar disorder, but there is no way on God's little green earth that he should have applied for a stressful job at ADGA in that time and space knowing the truth about bipolar and stress, and the work that had to be done. He had a manic then depressive episode that lasted 3 months when he got fired. Imagine what would have happened in the middle of a stressful test series when everybody was on edge, and so he started to feel things getting out of control and started to move towards a manic phase. He could have spun out of control in a way that was dangerous to himself and to those working with him, and ultimately to the project, and therefor to our troops who rely on the weapon systems being tested.

As I have said in other posts, I have a brain injury and am disabled. One of my challenges is that I can no longer handle stress very well, whereas previously I would have said that that stress tension held me together. But, I do well in one on one interview situations that do not last long, and I can present well during that time. If I were to try to return to work, and apply for jobs based on my technical skill set from prior to my accident, I could probably get myself hired, as long as I did what Mr. Lane did and ignored some important facts about my health.

From the experience of trying to return to my own job on a few occasions after this injury, I know that I would last for a few hours. Then I could go to my supervisor and say, by the way, I have a disability and I need you to accommodate me. If I read this case correctly, because I am disabled, they could not discriminate against me, and if they did, I could go to my local HRC, hitch up to the tax free gravy train, and my new employer would get treated like ADGA did, with similar penalties to the ones listed below.

The Tribunal held that ADGA had not accommodated the disability that Mr. Lane had misled them about, when they finally figured it out, and so they penalized them to the tune of (with my amendments for clarity and editorialisation:

1. Damages for violation of Mr. Lanes' inherent right to be free from discrimination and to lie like a rug to the tune of $35,000
2. Damages for reckless infliction of mental anguish, $10,000. The Ontario Human Rights Commission recklessly inflicted mental anguish on ADGA for free, except for the cost of ADGA's own legal fees.
3. Special damages of about $34,300 for loss of Mr. Lane's salary because his rights were violated. These aren't special damages. They are extraordinary. If he had been truthful with them in the beginning, they never would have hired him because they would have known from the beginning that he could not do the job.
4. Pre and Post judgement interest.
5. ADGA had to retain at its own expense a qualified consultant to provide training to all employees, supervisors and managers on the obligations of employers under the Human Rights Code, particularly to disabled employees and more particularly those with mental disabilities, plus 3 other ways to rub their noses into this.

I empathize with Mr. Lane. Being disabled is no walk in the park. Nobody deserves to have bipolar disorder, and have to try and figure out how to live with it. But ADGA did not deserve it either, and ADGA certainly did not deserve to get screwed over by the Ontario HRC. Mr. Lane could not handle the work period.

The Ontario HRC screwed ADGA over for 6 years making a discrimination case out of this, because they do that. This case sucks.