Labour & Employment Law – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 The Supreme Court of Canada decides how to define “employee” for the purposes of human rights legislation http://lawiscool.com/2014/06/01/the-supreme-court-of-canada-decides-how-to-define-employee-for-the-purposes-of-human-rights-legislation/ http://lawiscool.com/2014/06/01/the-supreme-court-of-canada-decides-how-to-define-employee-for-the-purposes-of-human-rights-legislation/#comments Mon, 02 Jun 2014 02:14:22 +0000 http://lawiscool.com/?p=3572 By:  Hermione Shou

The Supreme Court of Canada decided on the definition of an “employee” in the McCormick v. Fasken Martineau DuMoulin LLP case on May 22, 2014.  This case sets a precedent for management in many professional firms, especially partnerships, as it identifies what factors distinguish employees from partners.  It also sets out what establishes an employment relationship, making it helpful when distinguishing between employees and other types of workers.

In the case at hand, John McCormick worked at the law firm Fasken Martineau DuMoulin LLP as an equity partner.  All equity partners must retire by the last day of the year of their 65th birthday, as stated in the company’s partnership agreement, with the rare exception outside of the rule that equity partners can switch over to being an employee or non-equity partner.  When McCormick was 64, in 2009, he filed a complaint against the company at the Human Rights Tribunal.  He alleged that the firm’s provision discriminated him on the basis of age in the context of employment—an action contrary to s. 13(1) of the Human Rights Code, R.S.B.C. 1996, c. 210 (“Code”).

The firm then asked for the case to be dismissed at the Human Rights Tribunal with the grounds that the Code only protects employees and that because McCormick was an equity partner, the Code has no power over this type of relationship.  The Tribunal decided that the Code does have power over this issue, ruling that an employment relationship does exist between McCormick and the firm.  In response, the firm applied for judicial review, but the British Columbia Supreme Court dismissed their application.  On appeal at the Court of Appeal, it was ruled that an employment relationship, for which the Code can apply to, does not exist and that the Tribunal does not have jurisdiction over this matter.  McCormick then appealed to the Supreme Court of Canada, but the appeal was dismissed.

In determining whether or not an employment relationship exists, the Supreme Court of Canada looked at two aspects of the relationship:  control that the employer had of work conditions and remuneration, and the dependency that the worker had on the employer.  McCormick was neither controlled by the firm as an employee nor was he dependent on the firm, as an equity partner, so he does not match this definition of an employee.  It was also established in the case that partners in a partnership are actually the ones who have control of the work conditions and remuneration, and are in fact the employer.  McCormick falls into the definition of an employer as he was an owner with equity stake in the firm who was involved with its management and profit-and-loss sharing.  Furthermore, the case illustrates how the relationship between the firm and the equity partner needs to be evaluated on a case-by-case basis to determine whether or not an employment relationship exists.  Thanks to this important decision, relationships in the employment context in Canadian professional partnerships are much clearer.

 

Sources:

McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 (CanLII).

Valerie Dixon, “Supreme Court of Canada Rules on the Definition of “Employee” in Human Rights Legislation” Canadian Labour & Employment Law Blog, online:  Miller Thomson LLP <http://www.millerthomson.com/en/blog/canadian-labour-employment-law-blog/supreme-court-of-canada-rules-on-the>.

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Some Aspects of Attendance at Work Obligations in Ontario http://lawiscool.com/2012/08/01/attendance-at-work/ Wed, 01 Aug 2012 17:31:03 +0000 http://lawiscool.com/?p=3451 Our Canadian labour and employment system in Ontario functions under Collective Bargaining, Common Law, and Employment Standards Act (ESA) regimes. A selection of cases can help demonstrate how these three regimes manage to regulate the amount of work and attendance obligations of employees in Ontario.  McGavin and the Falconbridge cases, outline some of the perimeters that separate collective bargaining, the common law, and ESA regimes and can help deduce what each of these regimes can produce for an employee’s day-to-day workplace obligations.[1]   Next, The Wal-Mart case establishes how the collective bargaining regime interacts with an employer’s ability to effect unionization and collective agreements that are created to affect amount and attendance at work.[2] The nature of the basic agreement between the parties in each regime and the remedies available to correct alleged wrongs is an important aspect of this paper.  Furthermore, this paper will look at the fundamental ways in which collective bargaining changes agreements and remedies.  It should be noted that collective bargaining regime is different from traditional contracts with implied terms (common law regime) and conventional statutory regulation governing some minimum standards in contracts (ESA); the selected cases here discuss aspects of collective bargaining and the amount of work an employee is obliged to complete in comparison to the common law system and the ESA.

Common Law and Statutes

 

Common law employment agreements are similar to common law contract.  They are created through an offer, acceptance, and consideration and are exclusive to parties directly negotiating themselves into various amounts of work and attendance requirements.  Contracts may contain certain implied, but rebuttable terms, and are to be adjudicated by a court of law – unless parties contract themselves out of such remedies.  Provisions could include the amount of work, over-time pay, vacations, and the consequences that would flow from lack of attendance with or without excuses and other such terms.  In McGavin, for example, regular attendance at work is noted as one such implied term in the contract; failing to attend would, in a common law regime, count as breach of contract and be cause for dismissal.[3]

In the contractual regime lawmakers have often either mandated or forbade inclusion of specific terms in some general class of contract. If a contract is expressly or impliedly is prohibited by statute or common law, it is illegal and void ab initio.[4]  The ESA makes exact types of statutory amendments, detailing the minimal provisions that an employment contract shall be implied to contain and which, cannot be contracted around even notwithstanding the will of all parties.  The 1983 decision Falconbridge illustrates how these provisions would apply in the determination of overtime pay: if an employee is found to have worked more than 44 hours within their work week, they are entitled to time and a half pay for their remaining hours in that week.[5]  No mention of the original contract is made when deciding this point, since that contract is irrelevant once the ESA has set an unavoidable minimum provision. A contract cannot take away this overtime pay entitlement.[6] Falconbridge does, however, reference the collective agreement when determining what a “work week” actually is, since ESA does not clearly command this aspect of the contract.

The only considerable difference between the ESA and other contract-modifying statutory provisions is that ESA-based disputes for example about the amount of work that would be considered over-time can be adjudicated either through the courts or through a specific ESA tribunals. In such instance an officer would be assigned to decide the fate of a grievance by an employee or employer.  Once jurisdiction has been assumed by one of the bodies, the process has begun and no remedy can arise out of another judicial body available in the Employment and Labour Law context.  Falconbridge case travelled through the courts and this route would have automatically prevented a simultaneous appeal to the Tribunal.[7]

 

Consequences of Collective Agreements

 

When it comes to termination, the Collective Bargaining regime in Canada has a clear purpose, and effect in relation to the employee amount of work and attendance obligations. Collective bargaining is based upon the premise that a collective body can negotiate on behalf of all employees, even against the wills of up to 49% of said employees.[8]  Such agreements entirely displace individual employment relations.[9]  These agreements also displace much of the rationale behind the ESA provisions, since an unionised and complex bargaining unit is seen to be in less need of statutory protection.[10] The idea is that a collective structure operates under a set of rules that are entirely different from the common law or statutory mandates.  Here even a highly sophisticated corporation is treated similar to a person who is merely a privy to the collective agreement.  Interestingly, the certification of a union including an attempt to establish a union would instantaneously impede recourse to courts of law.[11] All parties in this situation must first go through arbitration.[12]  The McGavin and Falconbridge cases can help illustrate this issue since both were decided on the premise of failure of the complainants to go through the appropriate arbitrative networks including the bargaining table in the case of Falconbridge.[13]

Another consequence of interacting in a collective agreement is that employees lose their ability for individual decision-making.  Parties to any contractual agreement can, in the middle of that agreement, meet each other and come to whatever alterations and accommodations they can mutually agree to in regards to amount of work and various attendance requirements. This is indeed the case under the common law of employment, which is restricted only by the ESA mandates. One interpretation of the Wal-Mart decision may allow for the recognition of the parties’ right to have such discussions regarding most employment-related matters. However, after certification of a bargaining unit and a union – the contractual nature fails since “…it is [not] possible to speak of individual contracts of employment and to treat the collective agreement as a mere appendage of individual relationships.”[14]

After certification, the union is the one and only party that can bargain for all employees, including those who did not vote for the certification of the union.[15]  The extent of this bargaining power is noteworthy: in Falconbridge, the union was assumed to have the power to effectively waive the ESA on behalf of its employees regardless of the individual employees knowledge or consent to such a concession with potential adverse effect on the employees.[16]  It is stated in McGavin, these employees would have no right to strike to protest the union’s waiver of their rights; their best option would be to get classified as a separate bargaining unit under OLRA section 8.1(5.5).[17]

Whether the union has the power to waive safety statutes or commit the employees to otherwise excruciating working conditions is a question that must be addressed.  Failure of employees to stand by their collectively bargained agreement may be just cause for dismissal resulting in the breakdown of the work relationship.  The consequences of just cause dismissal are that the employee does not receive employment insurance benefits or reasonable notice or payment in lieu of termination.[18]

The leading case in Canada on dismissal for cause is McKinley.[19] In this case, the Supreme Court of Canada held that just cause for dismissal is where the employee’s work place breach gives rise to a breakdown in the employment relationship.[20] The Court concluded that just cause exists where the misconduct violates any fundamental condition of the employment contract, breaches the faith inherent in the employment relationship, or is essentially inconsistent with the employee’s obligations to the employer.[21] The Court also stated that an applicable balance must be struck between the severity of the misconduct and the punishment imposed by the employer.[22]  Hypothetically, failure to attend intolerable work bargained by the union may mean that employee may at the very least lose their termination pay entitlements since there are no clear cases outlining a union’s fiduciary/agency duties toward its members.[23]

 

Remedial Measures

 

The remedial provisions available for effective breach of the employment relationship differ in the three regimes. Whether under common law or related statutory mandates, the parties may breach the relationship by their conduct.  Consequences include damages for the breach and the voiding of contract or other remedies flowing from the law of contracts.[24]

Breaches of a collective agreement, however, only generate the right to file a grievance to an arbitrator.[25] In McGavin, even the fundamental breach of not showing up to work was held inadequate to prompt common law remedies, although the employer did have the right to file a grievance and seek termination at the arbitration hearing.[26] In Falconbridge likewise remedies provided by the Collective Agreement – arbitration in the short term, renegotiation in the long term – are the only remedies that are available, even for an ESA claim.[27] Hence it is clear that the initiation of a Collective Bargaining regime that would affect fundamental terms such as the amount and attendance requirements dislodges common law and most statutory mandates. As a result, what is left are the remedies provided by the collective agreement – often restricted to arbitration.  Although it should be noted that an arbitrator may still look to the common law or the ESA to reach a decision about non-negotiated terms, but most sophisticated parties would not leave a substantial matter out of the collective agreement.

It is important to understand the ultimate Collective Bargaining remedy: The ability to strike in absence of an agreement. While striking for recognition of grievances is permissible under both the common law and the ESA, it is usually treated as fundamental breach and is typically rewarded with instant dismissal. A certified union, however, has the ability to order an organized strike after its good-faith negotiations with an employer fail which would effectively end the employees work obligations.[28] The employer is precluded from permanently terminating striking workers who are not attending work for the first six months of a strike.[29] While it is important for the juridical pupil to understand this power and the bargaining advantages that it offers, it is often even more important for the legal rookie to grasp its limits; a strike can only be called where there is no existing Collective Agreement in place. The employees in McGavin Toastmaster, for example, attempted to strike while a Collective Agreement was in effect; an action which constituted an illegal wildcat strike subject to arbitrative punishment.[30]

 

Employer duty of non-interference

 

There are also some duties that are enforced upon the employer under the collective bargaining regime. Since union members and organizers are inherently in a dynamic power relationship with the employer, the employer may have the ability to punish their union participation by reacting against them personally, either by creating unbearable working conditions or through termination. The resulting employer duties of non-interference in union matters, enumerated in OLRA s.70 and s.72 where hardly any other legal relations impose such a strong prohibition on the way speech and action by an employer can be regulated. In Wal-Mart, the employer greeted the news of a emerging union organization drive with an argumentative battle. The employees were gathered for a speech by the area manager, a pro-employer employee was allowed to give a lengthy speech on behalf of the employer – with no rebuttal speeches allowed by union organizers, the “home office” managers spent several days walking around the store asking employees about their union support, and the employer implicitly indicated that the store might close upon successful union certification by refusing to answer the questions about the potential for store closure, despite otherwise indicating a willingness to answer all other types of questions.[31]

Wal-Mart having used every union-deterring option short of actual dismissal allowed the OLRB to adjudicate the appropriateness of various forms of an attack on amount and attendance at work for the purposes of this paper. The pro-employer speech by the employee and the gathering of workers was permissible, but the fact that there was a threat of store closure which would destroy the ability to attend work in an implicit fashion was sufficient to breach section 70 of the OLRA: “An employer simply cannot allow an employee to make a speech containing… subtle threats to job security… at a meeting run by management, fail to distance itself from the comments and then silence the union’s supporters…”[32] The presence of the outside managers, while not ruled prima facie actionable was held to be “an extremely risky response… to the union’s organizing drive.”[33] Their “repeated and persistent personal contact… was clearly designed to identify the union supporters and communicate the message [that a union was unwelcome]…”[34] This interference by the outside managers was found as a breach of section 70 – an action designed to adversely affect the union’s organization drive directly affecting the ability of employees to engage in their contractual obligations of certain amount of work and attendance.

In conclusion, Wal-Mart decides that the employer’s failure to answer questions about store closure also, in these “unique” circumstances resulted into the breach of section 70: “If you adopt the approach of constantly soliciting questions [in the circumstance of a union organization drive] you have to answer them… company’s failure to answer the questions of associates with regard to the issue of store closure would cause the average reasonable employee to conclude that the store would close if the union got in.”[35] Hence, if the employee asks questions about the union, the employer should decide to either answer all or none in a way that will not be seen as jeopardizing the employee’s ability to attend work.

Hence, a union can be seen as an agent, which negotiates on behalf of previously individual employees. The choice of whether to bargain individually for the amount of work and attendance requirements under common law and ESA doctrines, or collectively under OLRA collective bargaining provisions should rest with the employees alone. The OLRA provisions were designed to leave that choice with the employees.[36]  It would be counterproductive to the goal of empowering employees to have the employer affect this choice since the employer may have a hidden agenda to support the least effective bargaining agent that attempts to unionize.

 

Conclusion: Termination with cause

 

The basics of Labour and employment Law that effect the amount and attendance requirements of employees in Canada are ultimately created through the distinction between the common law employment contracts as modified by the ESA versus the collective bargaining regime. These differences mainly rest in the type of judicial remedies available to employers/employees with a grievance regarding daily work obligations. For the common law there are the courts while the ESA, a court or a tribunal appointed officer. For collective bargaining there is arbitration. Ability to strike without facing dismissal when a group of employees for instance are pushed to work in difficult conditions without any break time or paid vacations and the prohibition on employer to interfere with the unionization process is one of the advantages of collective bargaining.

 

 

 

 

 

 

TABLE OF AUTHORITIES

 

 

 

 

LEGISLATION

Ontario Labour Relations Act, 1995, SO 1995, c 1, Schedule A [OLRA].

Ontario Employment Standards Act, SO 2000, c 41, s 97 [ESA].

JURISPRUDENCE

Cope v Rowlands, [1836] 150 ER 707.

Falconbridge Nickel Mines Ltd. and Egan et al, 1983] OJ No. 3068, 148 DLR (3d) 474, ONCA [Falconbridge].

McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 SCR 718 [McGavin].

McKinley v BC Tel, [2001] 2 SCR 161 [McKinley].

Parry Sound (District) Social Services Administrative Board v Ontario Public Services Employees Union, Local 324, 2003 SCC 42.

United Steelworkers of America v. Wal-Mart Canada Inc. [1997] OLRD No 207 (OLRB) [Wal-Mart].

Weber v. Ontario Hydro, [1995] 2 SCR 929.

SECONDARY MATERIAL: ARTICLES

Piccolo, P and Bhandal, N. “Dismissal for Just Cause: It Is Not Impossible To Terminate For Just Cause… The Right Policies Can Do Wonders!” Labour and Employment Group Leader at Keyser Mason Ball, LLP <http://www.kmblaw.com/news48.html>

 

 


[1] McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 SCR 718 [McGavin]; Falconbridge Nickel Mines Ltd. and Egan et al., 1983] OJ NO 3068, 148 DLR (3d) 474, ONCA [Falconbridge].

[2] United Steelworkers of America v. Wal-Mart Canada Inc. [1997] OLRD No 207 (OLRB) [Wal-Mart].

[3] McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 SCR 718.

[4] Cope v Rowlands, [1836] 150 ER 707.

[5] Falconbridge Nickel Mines Ltd. and Egan et al., 1983] OJ No 3068, 148 DLR (3d) 474, ONCA.

[6] Ibid.

[7] Ontario Employment Standards Act, SO 2000, C 41, s 97 [ESA]. Grievance may not file civil action, including suit for wrongful dismissal, if have complaint and s.98 of ESA: no ESA complaint if civil action.

[8] Ontario Labour Relations Act, 1995, SO 1995, c 1, Sched A, s. 10 [OLRA].

[9] Supra note 3.  Here the common law rules of constructive breach no longer applied after a collective agreement was signed.

[10] Supra note 5.  Here, the union was denied standing for grievance because they were seen as having had a number of chances to bargain about the very matter at hand.

[11] Supra note 2.

[12] Supra note 8 at s43 and s48.

[13] Supra note 1 and note 5.

[14] Supra note 1.

[15] Supra note 8 at s45.

[16] Supra note 5.

[17] Supra note 1 at 724.

[18] Piccolo, P and Bhandal, N. “Dismissal for Just Cause: It Is Not Impossible To Terminate For Just Cause… The Right Policies Can Do Wonders!” Labour and Employment Group Leader at Keyser Mason Ball, LLP <http://www.kmblaw.com/news48.html>

[19] McKinley v BC Tel, [2001] 2 SCR 161 [McKinley].

[20] Ibid at para 48.

[21] Ibid.

[22] Ibid at para 53.

[23] Parry Sound (District) Social Services Administrative Board v Ontario Public Services Employees Union, Local 324, 2003 SCC 42.  Here it was decided that while OLRA Section 17 does specify a general duty to bargain in good faith, it is not clear if that good faith includes a duty towards one’s members.   Furthermore, Section 17 is usually cited in complaint of a lack of serious bargaining by an employer and not the union itself.

[24] Breaches were acknowledged in McGavin on the employee side and Falconbridge on the employer side.

[25] Arbitrators and human rights tribunals have concurrent jurisdiction over human rights (Parry Sound SCC 2003); section 48(12)(j) OLRA: arbitrators have power to interpret and apply employment-related statutes; section 45.1 Ontario Human Rights Commission: Tribunal can dismiss complaint if another proceeding has appropriately dealt with it; section 99 of ESA: if employer is party to a collective agreement, ESA enforceable as if part of Collective Agreement – may not file complaint under ESA to enforce.

[26] Supra note 1 at 727.

[27] Supra note 5.

[28] Supra note 8 at s17 and s 79(2).

[29] Ibid at s 80.

[30] Weber v. Ontario Hydro, [1995] 2 SCR 929.  Here it was decided that arbitrators have broad power to interpret and apply the general law.

[31] Supra note 2.

[32] Ibid at para 41.

[33] Ibid at para 43.

[34] Ibid.

[35] Ibid at para 47.

[36] Ontario Labour Relations Act, 1995, SO 1995, c 1, Sched A, s 5, s 70 and s 72.

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Discrimination at the University of Ottawa? http://lawiscool.com/2012/01/31/discrimination-at-the-university-of-ottawa/ http://lawiscool.com/2012/01/31/discrimination-at-the-university-of-ottawa/#comments Tue, 31 Jan 2012 16:06:42 +0000 http://lawiscool.com/?p=3310 Khalid Aba-Alkhail, Manal AlSaigh, and Waleed Alghaithy, three physicians from Saudi Arabia, have filed a lawsuit against the University of Ottawa for over $150 million dollars. The doctors were enrolled in postgraduate medical education programs at the university, where they claimed the experienced discrimination and harassment resulting in the termination of their enrollment.

UofO Student Appeal Centre director Mireille Gervais appears to support the plaintiffs,

I’ve seen some of the evidence that supports the claim, and I am continuously in shock to see how far the university’s misbehaviour and egregious behaviour in this case has gone. There’s documented evidence to support the fact that there really was a conspiracy toward these students.

The university however released a statement yesterday denying the allegations. The CBC reports that the university spokesperson stated,

…the university “denies all allegations of wrongdoing made in the suit. The claims are entirely false, and the university will be vigorously defending itself against this suit, and defending the quality and the integrity of its medical education programs.”

The statement goes on to say that the faculty of medicine “has been welcoming foreign medical students for more than 30 years, and boasts one of the largest numbers of foreign residents and fellows in Canada, the majority of whom have successfully achieved the required academic standards for graduation.”

“We take pride in our diversity and high standards, and believe that they contribute to our excellence,” the university said.

The plaintiff’s Statement of Claim, which is over 120 pages long and was filed on November 24, 2011, is below.

ABA-ALKHAIL Et Al vs University of Ottawa Et Al

Update
A reader contacted us to provide the following materials. Although the veracity of the emails cannot be vouched for directly, the related motion is confirmed as an actual reported decision:

Neuroleaks Decision + materials

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Constructive dismissal http://lawiscool.com/2011/08/14/constructive-dismissal/ http://lawiscool.com/2011/08/14/constructive-dismissal/#comments Sun, 14 Aug 2011 17:22:23 +0000 http://lawiscool.com/?p=3206 Recently, I consulted a client who was in a conflict with a few co-workers. Let’s call him Jack. My client told me they did not like him. Jack received emails accusing him of poor communication skills and mistakes in the performance of his work duties. Jack convinced me that the accusations were groundless. He believed his co-workers wanted him to quit so they could help their friend take his place. He thought it was bullying and wanted it to stop. Jack’s bosses didn’t help him much. But none of the bosses took part in or condoned the criticisms. One of them did ask Jack’s co-workers to tone it down, and the tension went down a little for a while. Still, Jack felt uncomfortable at work.

Jack talked to me because he clearly wanted one of two things: a complete end to what he thought was bullying or termination of his employment with a fair severance package. He was willing to leave if his employer paid him enough.

Usually, if you quit your job, you cannot expect any good-bye package. Employers must pay terminated employees if they are dismissed not if they leave voluntarily. The amount depends on such things as how long you worked there, how much you made, what your job was, how you were originally hired, etc. If the employer fires you for a good reason, it doesn’t have to pay you anything. Good reasons can include lying, stealing, punching someone in the face, or failing to stop doing something wrong but less serious after several warnings. This is called dismissal for cause. If there is no “cause” for dismissal, you must get either an early notice of dismissal or whatever you would have earned during the period after such notice if they want to let you go right away.

But what if you did nothing wrong, but your job becomes unbearable? Sometimes in cases like that, you can quit and still expect a payment as if the employer terminated you without cause. When your employer changes a fundamental term of your job without your agreement, the law recognizes your right to quit and keep your pay for a certain while (or get it all at once). This is called constructive dismissal. The basic rule is a fundamental term of your job must be at stake and you must not agree to its change. Cutting your pay, demoting, taking all responsibility from you, cutting off your access to basic tools you need to do your job, demanding that you work completely new hours, serious harassment—all of those things may be constructive dismissal.

I told Jack that he probably didn’t yet have a case for constructive dismissal. A couple of sarcastic emails belittling his communication skills and a few times when he though he was intentionally set up for failure did not justify the risk of litigation. If Jack accused his employer of constructive dismissal and sued, he would definitely lose his job, but his success in getting a good package through the courts was far from guaranteed. The only assured payout was my legal fees. I recommended to wait and gather more evidence, and yes, to bear up. Law is a powerful, blunt, and expensive tool, and often it expects some degree of stoicism. That’s why it’s important to consult a lawyer before taking any drastic steps at work. We may actually prevent useless litigation.

Pulat Yunusov is a Toronto litigation lawyer.

 


(Post sponsored by AdviceScene)

 

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Ryan Venables – Case Comment: UFCW Local 401 v. Old Dutch Foods [2009] ALRBD No. 56. http://lawiscool.com/2010/11/27/ryan-venables-case-comment-ufcw-local-401-v-old-dutch-foods-2009-alrbd-no-56/ Sat, 27 Nov 2010 10:34:54 +0000 http://lawiscool.com/?p=3031 Follow the case comment link to the full case comment done by Ryan Venables

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Ontario Prostitution Laws Struck http://lawiscool.com/2010/10/14/ontario-prostitution-laws-struck/ http://lawiscool.com/2010/10/14/ontario-prostitution-laws-struck/#comments Fri, 15 Oct 2010 02:32:08 +0000 http://lawiscool.com/?p=2970 I have to admit that when I first heard on AM980 that Justice Susan Himel stuck the prostitution laws for Ontario, I was a bit dismayed.  Many people who think of prostitution think of the typical “street-walker” on the corner soliciting “john’s” for a quickie in the back of a pickup, and (hopefully) getting arrested in a COPS style raid.

Now that I’ve had a little opportunity to digest the news, here is what I think.  Although a quick caveat, I have not read the actual decision.

First off.  What is a common bawdy-house?

s. 197

“common bawdy-house” means a place that is (a) kept or occupied, or (b) resorted to by one or more persons

for the purpose of prostitution or the practice of acts of indecency;

Second, what are the relevant prostitution laws in for Canada?

s. 210. (1) Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Every one who

  1. is an inmate of a common bawdy-house,
  2. is found, without lawful excuse, in a common bawdy-house, or
  3. as owner, landlord, lessor, tenant, occupier, agent or otherwise having charge or control of any place, knowingly permits the place or any part thereof to be let or used for the purposes of a common bawdy-house, is guilty of an offence punishable on summary conviction

212. (1) Every one who

(a) procures, attempts to procure or solicits a person to have illicit sexual intercourse with another person, whether in or out of Canada,

(b) inveigles or entices a person who is not a prostitute to a common bawdy-house for the purpose of illicit sexual intercourse or prosti- tution,

(c) knowingly conceals a person in a com- mon bawdy-house,

(d) procures or attempts to procure a person to become, whether in or out of Canada, a prostitute,

(e) procures or attempts to procure a person to leave the usual place of abode of that per- son in Canada, if that place is not a common bawdy-house, with intent that the person may become an inmate or frequenter of a common bawdy-house, whether in or out of Canada,

(f) on the arrival of a person in Canada, di- rects or causes that person to be directed or takes or causes that person to be taken, to a common bawdy-house,

(g) procures a person to enter or leave Cana- da, for the purpose of prostitution,

(h) for the purposes of gain, exercises con- trol, direction or influence over the move- ments of a person in such manner as to show that he is aiding, abetting or compelling that person to engage in or carry on prostitution with any person or generally,

(i) applies or administers to a person or cau- ses that person to take any drug, intoxicating liquor, matter or thing with intent to stupefy or overpower that person in order thereby to enable any person to have illicit sexual inter- course with that person, or

(j) lives wholly or in part on the avails of prostitution of another person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

213. (1) Every person who in a public place or in any place open to public view

(a) stops or attempts to stop any motor vehi- cle,

(b) impedes the free flow of pedestrian or vehicular traffic or ingress to or egress from premises adjacent to that place, or

(c) stops or attempts to stop any person or in any manner communicates or attempts to communicate with any person

for the purpose of engaging in prostitution or of obtaining the sexual services of a prostitute is guilty of an offence punishable on summary conviction.

(2) In this section, “public place” includes any place to which the public have access as of right or by invitation, express or implied, and any motor vehicle located in a public place or in any place open to public view.

Okay, with the logistics out of the way, lets look at my opinion.  I am glad to see that Justice Himel reserved judgement for 30 days to allow for an opportunity for the Provincial Crown to appeal, which is what they did the very next day.  From my understanding Justice Himel’s reasoning, in agreement with the litigants Terri-Lynn Bedford, Valerie Scott, and Amy Lebovitch, indicated that the laws needed to be struck from the Canadian Criminal Code because they created real safety concerns for current sex-trade workers.  The Globe and Mail article indicated “in her [Justice Himel] 131-page ruling which took her a year to produce, Judge Himel found that laws set up to protect prostitutes actually endanger their safety, forcing them to furtively engage in hasty transactions conducted in shady locations.”  The rationale behind this is now sex-trade workers will be able to get off of the street and into what was “formerly” known as a common bawdy-house which in their opinion would be a controlled environment that would allow for protection from predators such as Robert Pickton.

Additionally, it is hoped (by the litigants) that this will also move the sex-trade indoors and remove some of the visible signs that are currently on display.

Well, I have to admit that in my policing career I did not have the opportunity to enforce Canada’s prostitution laws on any “street-walkers,” I can say that the trade is flourishing in illegal massage parlours and strip clubs.  I do not agree with the rationale that this law will protect sex-trade workers from potential Robert Pickton’s for a couple simple reasons:

1. Massage Parlours and strip clubs have notoriously been areas were the solicitation of sex is an ongoing “problem” and striking these laws down does nothing to curb the problem.  If anything, it can put the “girls” in more jeopardy as massage parlours and strip clubs are generally owned by individual members of organized crime factions – specifically Outlaw Motorcycle Gangs like the Hells Angels.  As I see it if sex acts become legal and are able to be performed in strip clubs and massage parlours, we are feeding the “girls” to the MOST dangerous criminal elements in society.

2. It believed that girls who currently walk the streets will be able to obtain protection in the safety of massage clubs or other “brothel” type establishments.  While this is laudable on its thought, in practicality it does not work.  The girls who (again in my opinion) walk the street are generally addicted to drugs, have mental health concerns, and have turned to the streets because there is nowhere else for them to go.  The people who would start up a potential brothel or massage parlour generally pass over the girls who are older, not “attractive” enough, and have drug and mental health issues.  Where will the protection be for these sex-trade workers?

3. Where will the protection be against unfair labour practises?  In all seriousness, will they unionize?  How is this going to be monitored, will they be taxed?  Will by-laws be involved?

Additionally, evidence presented urged Judge Himel to also reflect on the fact that prostitution is inherently degrading and unhealthy, and should not be encouraged as a “career choice” for young women through a slack legal regime.  With all due respect to the learned Justice Himel, I do not think any 6 year old girl dreams about the nitty gritty of “Pretty Woman.”

One misleading inaccuracy in the article includes: Several cities – including Toronto, Victoria, Windsor, Calgary and Edmonton – charge fees to licence body-rub establishments despite the general understanding that many sell sexual services.  While they do in fact license “body-rub” establishments, they are not (as the article would lead you to believe) licensing massage parlours for sexual services.  What they are licensing is a massage establishment which begins and ends at the massage.

In the end, SHOULD these laws be struck, I suspect it will be many years before this makes its way through the Ontario Court of Appeal and then on to the Supreme Court of Canada.  However, once this legal drama makes its way through its appeal process, in the end if it is struck from our laws (which for the record, I do not believe it should be – see above) there are other issues and areas of law (Administrative Law, Employment/Labour Law, Municipal Law…etc) that will need immediate addressing.

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The Donkey and the Carrot: Why Law May Not Be So “Cool” After All http://lawiscool.com/2010/08/27/the-donkey-and-the-carrot-why-law-may-not-be-so-%e2%80%9ccool%e2%80%9d-after-all/ http://lawiscool.com/2010/08/27/the-donkey-and-the-carrot-why-law-may-not-be-so-%e2%80%9ccool%e2%80%9d-after-all/#comments Sat, 28 Aug 2010 00:02:33 +0000 http://lawiscool.com/?p=2871 For the class of 2013 (or 2014 in my case), the end of summer signals the beginning of law school.  Buoyed by hopes of success and spurred by the prospect of good paying jobs at the end of it all (or the metaphorical carrot on a stick), many of us are getting ready to settle in and start what will no doubt be a challenging but personally fulfilling year.  In the same spirit, I eagerly packed my bags and headed to Montreal propelled by the well wishes of friends and family members.  “You’ll do great,” they said.  “There’s a B curve at McGill.”  I replied.  “Don’t worry about it,” they said.  For months I had been complaining about paying tuition (side note: I know McGill’s Faculty of Law has one of the lowest tuitions in Canada.  Don’t stone me…), and I was saddled with my own fears and apprehensions.  But my friends and family reassured me: “It’ll all be worth it in the end.”  “Go out and make those big bucks,” they said.  So I pranced off to law school.

Shortly upon my arrival, I was in the McGill bookstore looking for my law textbooks when I randomly ran into and finally met fellow Law is Cool contributor Siena Anstis.  We lamented over the dollars that we would inevitably have to shell out in the next few weeks, but Sienna reminded me that, “It will all pay off in the end.  That’s what I keep telling myself anyway…”

A few days later, I went back to the bookstore to purchase my first set of law textbooks (yes, they are so heavy that I will have to buy them in instalments).  There, I bumped into another fellow 1L.  Although we exchanged no words, our countenances did the talking as we exchanged depressed glances, and I made my way to the cashier to pay for my textbooks.  At the cash, I let out a heavy sigh, still decrying the amount of money that these textbooks were going to cost me.  The cashier replied, “Don’t worry.  You’ll make it all back by the end of [law school].”

If I had a dollar for the number of times I was told that…

Most of us are going to law school with the ulterior motive of making some “good money” (admit it…) at the end of it all.   No one pays upwards of $60 000 for the heck of it.  After all, many of us go to law school desperately hoping that the stereotype rings true: “lawyers are stinking rich, or at least can live comfortably” and “job prospects abound for those with a law degree.”  However, as if to add insult to injury, the following excerpt from a blog post puts the stereotype into question:

The Real Value of a Legal Education

By John Farmer Jr.

America’s law schools begin the 2010-2011 academic year facing one of the greatest challenges to legal education since the rise of the modern law school at the end of the 19th century.

On one hand, the job market for law school graduates has rarely been worse than the past two years, and the class of 2011 is facing an equally daunting paucity of opportunities. As The Star-Ledger reported last week, some recent law school alumni who have had a difficult time navigating the job market have become embittered, claiming that the legal academy induced them to borrow large amounts of money by dangling a career prospect that has proven illusory.

On the other hand, interest in legal education has never been higher. Record numbers of qualified college graduates are applying to law schools, which are not hesitating to enroll them. This, in turn, led some members of the bar, meeting recently at the American Bar Association convention in San Francisco, to question the motivation of the law schools. How, they wonder, can they continue to admit thousands of students when their career prospects are so uncertain?

The struggles of recent law school alumni, coupled with the apprehensions of the bar, should give pause to those of us who are involved in educating the next generation of lawyers. …

In the short term, students should embark upon a legal education with their eyes open; the job market is difficult, and likely to remain so. Legal education is not, as the comments of some would suggest, an entitlement program.

…In retrospect, we were spoiled by the prosperity of the large law firms, and the easy career pipeline and high salaries they offered. Tuitions could be raised without fear of compromising the students’ futures; the debt students were forced to incur would be easy to manage with the high salaries recent graduates were commanding. As a consequence, many law schools became “cash cows” supporting programs in their larger university communities. The focus shifted to revenue; economic issues came to dominate.

But the real value of legal education is not, and never has been, primarily economic. It’s not about money; it’s about freedom.

Legal education gives students what 99.9 percent of humanity yearns for but is denied: control over one’s own life….”

I can’t help but wonder, however, how much control one can exert over one’s life when one is broke and thus at the mercy of loans, the leviathan that is the state and the monster that is capitalism.  We all know that job prospects for new law grads are not as great as they used to be (to say the least) – after all, there’ve been numerous posts and articles about this subject on numerous law blogs and sites.  But what am I to expect as a law graduate in 2014?  This year alone was one of the worst for articling students…  Can we – should we – expect better in a few years?  If so, there are no worries.  If not, however, it would behove the class of 2013 to start law school with, not only the end, but reality in mind.

Society?  It lied to me. My friends and family?  Maybe they were wrong.  It is quite possible that law school will not pay off in the end, or at least not without some elbow grease and elapsed time.  The reality is that, in some ways, many of us law students will be like donkeys with that illusive (or, depending on how you think of it, elusive) carrot dangling in front of us – motivated to work because of and for the carrot but forever running after something we may never realistically obtain.

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Blawg Review #278 http://lawiscool.com/2010/08/23/blawg-review-278/ http://lawiscool.com/2010/08/23/blawg-review-278/#comments Mon, 23 Aug 2010 10:35:43 +0000 http://lawiscool.com/?p=2856 Blawg Review is a blog carnival that rotates to a different law site every week, usually emphasizing a specific theme. Last week’s review was by R. David Donoghue.

August 23 is the “International Day for the Remembrance of the Slave Trade and its Abolition,” established in 1997 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) during the 29th session of the General Conference (Volume 1).

The purpose of the day is to examine:

  • the historical study of the causes and workings of the transatlantic slave trade,
  • the clarification of the consequences and interactions to which it gave rise, and
  • the contribution of the project to the establishment of a culture of tolerance and peaceful coexistence between races and peoples.

This year UNESCO has developed a documentary for this day Slave Routes: A Global Vision.

A companion document has has been released with the film, and will be referred to periodically throughout this post.

The Causes and Workings of Transatlantic Slavery

The origins of the Transatlantic slave route go back to the Iberian wars, between the Christian and Muslim kingdoms of Spain and Portugal. Both sides engaged in the enslavement of captives of war. As Slave Routes notes, the institution of slavery existed well before the Transatlantic route, both internally within Africa and to the Near East. But something different began with the European enslavement of Africans from the 15th c. onwards.

The first known African slaves sold in markets of recognizable European states was in Lisbon, Portugal in 1441, obtained from what is now Mauritania. The Portuguese had good reason for attempting to circumvent the Atlas Mountains and raiding the West African coast. In 1086 a black African dynasty originating from this area known as Al-Murabitun (Almoravids in English) provided military support and temporarily halted the expanse of the Christians. Soon after, Pope Alexander II provided the papal standard (vexillum sancti Petri) and an indulgence to the Christians in the conflict in 1063, making it officially a holy war that would culminate centuries later in the Spanish Inquisition.

The motivation for European slavery of Africans was therefore initially military, as an extension of the Western Crusades known as La Reconquista, or the reconquest of the Iberian peninsula by the Christians. In reality this term was probably too broad and an exaggeration, as many of the diverse peoples in the Muslim kingdoms of Spain and Portugal included native Iberians who had adopted the Islamic faith.

A permanent Portuguese fort was established at Arguin in 1448, and the 1452 Dum Diversas papal bull of Pope Nicholas V specifically authorized Alfonso V of Portugal,

…full and free permission to invade, search out, capture, and subjugate the Saracens and pagans and any other unbelievers and enemies of Christ wherever they may be… and to reduce their persons to perpetual slavery.

This established the basis for a racialized slavery, hereby unknown to Africa or any region engaging in African slave trade. As the motivations for slavery shifted from military goals to economic incentives, sheer greed resulted in a complete and utter destruction of African civilization and society. This is what made the Transatlantic slavery exceptionally devastating and worthy of particular scrutiny.

Web resources on the subject are expanding, archiving historic documents for amateur historians looking to deepen their knowledge on the subject. J.L. Bell has a post on Boston 1775 announcing American Slavery Debate, a new database of primary source documents.

Marco Randazza thinks slavery would be a pretty good alternative to some judicial punishments out there.

In some ways we’re all a slave to something. Those of us starting out in our legal careers are often a slave to the billable hour, or a slave to making partner. Norm Pattis is eying some of the pro bono work big firms are doing and wondering if they can spare him a partnership. Ronda Muir gives some tips to young lawyers on how to be a better lawyer by improving specific behaviours. Social media might boost a career, but Adrian Dayton cautions on a guest post at Above the Law that it takes time and dedication to get true returns.

If we don’t make it seems like we’re all likely to move back in with our parents. Stephanie West-Allen discusses these millennials on IdeaLawg. Scott Greenfield just sort of bashes them. Jordan Furlong thinks law firms should pay more attention to a workplace trend:

…a daydream about the courage to quit a job that treats you with less respect than you deserve… As Daniel Gross explains in a Newsweek commentary, “the poor labour market and workers’ antagonism toward employers and customers are actually connected”

Slavery means different things to different people. James T. Harris quotes Alan Keyes, who describes the experience of slavery as a guarantee of shelter, clothing and a job. “Socialism,” and Obama, is a form of slavery, if you buy the Keyes line that government-dominated largess is an infringement on freedom. Blunt Politics gives us more black Republicans who claim that real freedom comes through independence from the state, which they liken to the slave plantation,

This is not the land of guarantee, it’s the land of opportunity… but when you say racism is the problem, you put the power for your future in someone else’s hand.

My take is that the modern descendants of slaves are more likely to find guaranteed food, shelter and clothing in prison. The U.S. has the highest incarceration rate in the world, and African-Americans are disproportionately affected for a variety of reasons. I always wonder why Keyes doesn’t talk more about that, because it seems like race is the problem. Or part of it, at least. If nothing else it makes confidence and belief in the system difficult for minorities in the U.S. Abdul Hakim-Shabazz has his own doubts about police on the Indiana Law Blog after the David Bisard case, where an intoxicated on-duty officer struck and killed a biker and somehow had the charges dropped.

Law enforcement is not always right. James Morton thinks Col. Patrick Parrish is wrong about Omar Khadr. Confessions are only valid if they are free and voluntary. Threats of gang rape in prison usually vitiate that consent.

Eric Lipman reminds us about Terry Nichols in prison, not notable for being African-American, but rather for his role in the Oklahoma City bombing. Seems he’s not too happy with his food in prison due to the lack of insoluble fibre which doesn’t give him regular bowel movements. Seems the judge doesn’t give a…

Consequences and Interactions of Transatlantic Slavery

The most immediate consequence of the Transatlantic slavery was the dominance of European powers in the world. Western civilization as we know it today would not be possible without the hundreds of years of free labour, and the continued exploitation of natural and human resources. Operation Black Vote said,

The UK reaped huge profits for the despicable trade financing the developments associated with the industrial revolution. Britain made unprecedented profits and benefited enormously for the bloody trade. The legacy of racism remains with us some 400 years later.

Transatlantic slavery also created a system of oppression that places people of European ancestry on a higher level in a hierarchy maintained by what Slave Routes refers to as europhilia, ethnophobia and endophobia. It resulted in a far greater polarization of cultures in the world, as those attempting to restructure this hierarchy or seeking independence through an anti-colonial stance invariably adopted a counter-European philosophy. We see this pattern not just across Africa, but all of the colonized world, including the Middle East, across Asia, and Latin America.

August 23 was selected by UNESCO because it corresponded with the Haitian revolution, a major landmark in the resistance against colonialism and slavery. Slave Routes points out,

In the United States, the North America historian, Herbert Aptheker, has estimated that approximately 250 acts of sedition in all were organized by Afro-Americans to free themselves from slavery during the history of that “particular institution” in that country.

These revolts existed throughout the Caribbean and the Americas, and were a far more compelling reason for abolitionism than any humanitarian or compassionate grounds. For more on the Haitian revolution and slave revolts, see Blawg Review #249.

Although the direct domination of the developed world by European powers has largely ceased, the exploitative relationship continues to this day and is a major source of civil unrest and political tensions in the world today.

I came across this poster the other day on Queen Street West stating that “Slavery wasn’t abolished in 1834,”

It’s an advertisement from The Body Shop, who have raised over a million dollars to fight sex trafficking through partnerships with ECPAT USA (End Child Prostitution and Trafficking) and The Somaly Mam Foundation. The greatest consumers of modern sex trafficking continues to be wealthy European and North American citizens.

The Morning Quickie shares a review of Not Natasha, a photo book documenting the lives of survivors of sexual slavery in Moldova.

The key thesis behind Siddarth Kara and Devin T Stewart’s Sex Trafficking: Inside the Business of Modern Slavery is not that different from the Transatlantic slavery,

…the enormity and pervasiveness of global sex trafficking is driven by the ability to generate immense profits at almost no real risk.

They suggest the most effective way to address the profitability of modern slavery is to elevate the risk.

Not For Sale | Cambodia from Not For Sale Campaign on Vimeo.

Michael Platzer of the U.N.’s Center for International Crime Prevention said,

…200 million people are victims of contemporary forms of slavery. Most aren’t prostitutes, of course, but children in sweatshops, domestic workers, migrants. During four centuries, 12 million people were believed to be involved in the slave trade between Africa and the New World. The 200 million — and many of course are women who are trafficked for sex — is a current figure. It’s happening now. Today.

The Not for Sale Campaign has a slavery map tracking incidents near you revealed largely through law enforcement. The campaign focuses on more than just sexual slavery, and in their 2010 “Stop Paying for Slavery Tour” uses supply chain monitoring programs and looks at various forms of exploitation and economic dependence that result in a de facto rather than de juris forms of slavery.

Or as Jason Mustian recently put it,

Ron Soodalter at the Huffington Post talks about The Slave Next Door, and reaffirms that slavery is alive and well today. He’s calling for California to pass the Transparency in Supply Chains Act. A Heart for Justice reviews the same book.

Bruce Reilly visits the Modern Slavery Museum focusing on agricultural workers. Actually, the museum visited him, because it’s on wheels,

Farmworkers in this country have been the most exploited group of folks since the Abolition in slavery in 1865. As one farm owner puts it, “Before, we used to own the workers. Now we just rent ‘em.”

Faces of Slavery from David Hepburn on Vimeo.

Those interested in learning more might want to attend the Global Forum on Human Trafficking in Yorba Linda, CA on Oct. 14-15, or a number of workshops being held in the UK by UCL.

My Fight Planet gives us an edited version of highlights from “Fight Traffic,” a Mixed Marital Arts (MMA) event raising funds to abolish slavery and human trafficking. Maybe we can do something like that over here, because MMA fights are coming to Ontario.

Not all sports are so philanthropic. Tom Kirkendall is following the Roger Clemens case. Meanwhile, Howard Wasserman is cheering speech at the Sports Law Blog. Lilian Edwards comments on the case of the anonymous star of BBC’s racing show Top Gear trying to reveal his true name to cash in on an autobiography. (Sorry, no hockey here this time).

A Culture of Tolerance and Peaceful Coexistence between Races and Peoples

Michael Lynk, one of my former profs at UWO and currently Associate Dean, has the 2009 Rand Memorial Lecture on SSRN, Labour Law and the New Inequality. The premise behind the paper is that poor labour practices that stem from global inequity leads to instability and civil strife, limiting both social capabilities economic potential of these communities. UNESCO is currently mobilizing a response for the Pakistan floods, an issue of global concern to avoid radicalization, militancy and religious extremism in the region.

An obvious prerequisite for the horrors of Transatlantic slavery was the development of racial ideology. Slave Routes notes one of the major obstacles to political independence in Latin America was persistent and divisive racial ideologies. The Human Genome Project and countless scientific studies in recent years indicate the biological impossibility of human “races,” yet the resurgence of eugenics around the world is quite disturbing.

But genes can be used in good ways too. The Innocence Project announces that after 30 years DNA evidence has proven a Virginia man is innocent of rape charges due to the pro bono work of lawyers at Wilmer Cutler Pickering Hale and Dorr LLP. Another recent exoneree, Michael Anthony Green, wants to become a paralegal to help others wrongfully accused.

Speaking of wrongfully accused, Christine Corcos reports that Wikileaks founder Julian Assange was charged in Sweden for rape and molestation charges. Not so quick though, seems those charges were dropped in a hurry. Other charges of espionage against Assange are contemplated by Kenneth Anderson, but Julian Ku on Opinio Juris says in true spy form that they have to catch him first.

The most effective approach to peaceful coexistence might simply be for people to get to know and understand each other, a variation of the contact hypothesis used in sociology. But sociologists know that contact alone is not enough.

Eugene Volokh thinks Islamophobia is not quite irrational, citing a Time article indicating 46% of Americans believe Islam is more likely to encourage violence than other religions. Maybe, after several centuries of slavery and colonialism justified through religious practices, to restore some balance or equilibrium in global power. But sometimes, as Simon Fodden points out on Slaw, patience can be just as effective in the face of intolerance.

Volokh does note however that the accommodation laws invoked by many American Muslims today were intended for all religions and have primarily benefited Christians. And although Islamophobia is not a typical form of racism, it does rely on classic Social Darwinism thought.

By the way, Obama is not a Muslim, even though his middle name is Hussein (Can we get over this already?).

Slave Routes rejects the premise that racism is based on xenophobia or ignorance,

Racism can be defined as a process of suppression of the human being, based on socially selected phenotypical traits. This system classifies people according to their external physical characteristics and establishes a hierarchy of groups. In the long run, one of those groups defined as the superior race and the others are placed in inferior positions on the scale. Racism, therefore, is not a product of ignorance, the result of fear or concern over the ‘other’ or a natural phenomenon. [emphasis added]

Racism is more than a word, according to Marco Randazza. One word by a Dr. Schlessinger is what a lot of people are talking about right now. I’ll let you guess the word, but Norm Pattis weighs in too. One of his readers doesn’t agree though,

That someone as smart as yourself would join the oh so ignorant and completely off base “young black men say nigga, why can’t an old white woman say nigger?” team I hope speaks only to a generational divide and a complete lack of understanding of the context in which nigga is used and that it is a different word than nigger.

Where we do typically see racism manifested today is with immigration. Kevin Johnson at the Immigration Prof Blog discusses the 14th Amendment, which gives citizenship to the children of immigrants born in the U.S. Instead of repealing it, the real solution he proposes is immigration reform. Daniel Cubias points out how difficult it is to repeal an Amendment, and the unlikelihood of it happening, while J.E. Robertson considers it an attack on all Americans. Hegemomy notes that repealing the 14th Amendment used to be the talk of the fringe-right, and calls it the rise of the “Old South.” They heavy-handed tactics used in places like Arizona inevitably spill over into the general population, as evidenced by a case presented to us by Scott Greenfield.

What is needed is for group to have meaningful interaction with each other in a shared space and common goals to overcome deeply ingrained stereotypes and prejudices. It’s very difficult to hate others when you have extensive and nuanced encounters with a group that demonstrate the diversity found within them. For example, Martha Minow raises concerns that charter schools in the U.S. have the potential to create self-segregation.

Maybe that’s what the opponents of a new community center in lower Manhattan are really afraid of, that others won’t harbour the same hatred and animosity towards other that they do. Originally Park51 was appropriately called Cordoba House, invoking the city in Spain that was once a Muslim capital of a flowering multicultural and multi-religious literary civilization, extinguished by the same movement that led to the Transatlantic slavery.

Or maybe, as Jon Stewart suggests, Fox News is a terrorist command center (see here in Canada). Randazza doesn’t have much to say about it, aside from invoking through Sam Seder bull-size helpings of Terry Nichols’ favorite prison past-time:

Daniel Luban just calls it “The New Anti-Semitism,”

While activists like Pam Geller have led the anti-mosque campaign and the broader demonization of Muslims that has accompanied it, leaders like Abe Foxman have acquiesced in it. In doing so they risk providing an ugly and ironic illustration of the extent of Jewish assimilation in 21st-century America. We know that Jews can grow up to be senators and Supreme Court justices. Let’s not also discover that they can grow up to incite a pogrom.

It was through Cordoba that toothpaste and under-arm deodorant were introduced to Western Europe, and where literary works were translated freely between Arabic, Hebrew, Latin and Greek. It was in Cordoba that the Golden Age of Judaism flourished, giving birth to rabbinic scholars such as Maimonides.

Despite being one of the most tolerant and inclusive societies on Earth today, and all the lofty constitutional and human rights ideals, the United States has yet to accomplish the same culture of tolerance and coexistence that once briefly existed – in Cordoba.

Perhaps that’s something though we can all aspire to in Park51, if we’re willing to open our minds to it.

—————–

Charon QC has his own little law review going on, and Jordan Furlong has six for the road. Next week’s Blawg Review is by Mirriam Seddiq, a criminal defence and immigration lawyer who posts on Not Guilty. Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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Privacy Issues in the Workplace http://lawiscool.com/2010/05/12/privacy-issues-in-the-workplace/ Thu, 13 May 2010 00:40:25 +0000 http://lawiscool.com/?p=2651 Key Issues In Workplace Privacy

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Women in the Legal Profession http://lawiscool.com/2010/03/25/women-in-the-legal-profession/ http://lawiscool.com/2010/03/25/women-in-the-legal-profession/#comments Thu, 25 Mar 2010 15:51:00 +0000 http://lawiscool.com/?p=1464 It’s 2010. Twenty-eight years ago, Canadian lawyers helped draft the Canadian Charter of Rights and Freedoms, guaranteeing, among other things, gender equality before and under the law. Canadian lawyers have also drafted provincial and federal human rights acts, and each of the law societies’ professional regulations, all of which prohibit public, non-governmental gender discrimination.

But like the old saying goes, “If you see smoke, don’t forget to check the fire station.”

Last year some classmates and I researched the issue of gender inequality in the legal profession. We were saddened to find that it does indeed exist, though it appears to be on a belated decline.

We interviewed two law professors at the University of Windsor on the issue. Here’s what they had to say:

To get involved in this important issue in Ontario, check out the Women’s Law Association of Ontario (WLAO), which has been “Speaking out for Women Lawyers Since 1919”. Or, help spread awareness and ideas online herehereherehere or elsewhere.

And yes, “don’t forget to check the fire station” is not actually an old saying. However, once you abandon tradition you can find meaning in lots of new places.

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