"In my view, the adjudicator proceeded on an illogical, and legally incorrect, course of reasoning. First, he held that what Ms. Saadi was wearing on the day in question was consistent with her religious requirements. Second, he held that what Ms. Saadi was wearing was, at least according to the employer, inconsistent with the dress code. He therefore concluded that the dress code violated Ms. Saadi’s religious rights. The logical step that the adjudicator missed was a consideration of whether it was possible for Ms. Saadi to comply with the dress code without compromising her religious requirements. There was nothing about Ms. Saadi’s religion that required her to wear the particular form of hijab she was wearing on the day in question. If it was possible for her to wear a religiously acceptable form of hijab that was fully consistent with the dress code (as indeed she had done every day for six weeks), her religious rights were not affected. All that was affected was her sense of style, which apparently was in conflict with that of her employer.....If she chose, for example, to wear a battered old sweatshirt and baggy flannelette pants, the requirements of her religion would likely be met, but surely her employer could legitimately complain that this was not suitable attire for a professional office environment. The adjudicator in this case made an irrational decision by concluding that discrimination had been established any time an item of clothing was questioned and that clothing complied with the requirements of the complainant’s religion. He ought to have considered whether the dress code, or the employer’s enforcement or interpretation of it, conflicted with what the employee was required to wear as part of her religion."
Thursday, February 3, 2011
Ways to Describe a HRT Adjudicator's Words and Actions
"Patently unreasonable", "illogical", "unsupportable in law and fact", "legal errors", behaved "inexplicably", a "breach of principles of procedural fairness and natural justice", "it is simply not possible to logically follow the pathway taken by the adjudicator", "unsupported by factual findings","unfair", "failed to apply... legal principles", decision "fatally flawed", makes apparently contradictory findings, the decision "cannot be said to be rational or logical".
Who said all of that?
A) Ezra Levant
B) Mark Steyn
C) The Ontario Superior Court of Justice
The answer is, C, the Ontario Superior Court of Justice in a review of a HRTO decision.
Who was this patently unreasonable ruling against? Maxcine Telfer, a Toronto immigrant businesswoman who runs an organization devoted to helping immigrant women settle in Canada.
Result of original patently unreasonable ruling? A $36,000 fine and an attempt to seize Ms. Telfer's house in payment that was only foiled by the Superior Court's ruling.
Why? In the course of her business operations she hired Seema Saadi a legally-blind, Bengali-Canadian, Muslim social worker. But, less than six weeks after Ms. Saadi started work Audmax, Telfer's organization, let Ms. Saadi go for cause. She sued, and the HRTO found that Ms Saadi had been discriminated against on the grounds of ancestry, ethnic origin, creed, and sex largely on the grounds of their microwave and dress codes.
You lose a house for enforcing rules about what you can put in a microwave? Apparently that is what the HRT now considers reasonable.
Audmax had a strict environmental sensitivity that restricted the use of scented products or the heating of strong smelling food in the microwave. By even the admission of the Tribunal this microwave policy was strictly enforced on everyone, to the point that other people had just stopped using the microwave rather than risk running afoul of it. Apparently however, because Ms. Telfer couldn't provide a list of acceptable ingredients this "ambiguity leads to arbitrariness and the conditions for discriminatory enforcement." and therefore discipline resulting from violating the code was discrimination on the grounds of ancestry and ethnic origin although Ms. Saadi was not singled out for adverse treatment in this way and others were adversely affected by the rule as well. Indeed as the Superior Court pointed out, "It would appear from that factual conclusion (that she continued to use the microwave where others didn't) that the policy had less impact on Ms. Saadi than on others." Also the food was apparently not even hers, which shoots down the only remaining argument, that reheating strong-smelling food was an integral part of her ethnic identity. " I do not see how the ethnicity and ancestral rights of a Bengali-Canadian Muslim are adversely affected by being prevented from reheating somebody else’s Tunisian food."(Superior Court)
All in all the Superior Court said it best, " In short, the reasons do not disclose a rational basis for the conclusion that there was discrimination against Ms. Saadi in respect of the microwave policy. "
Dress code then? Was this a Hooters masquerading as a social work agency?
Apparently Ms. Saadi always dressed in a "religiously appropriate" manner, and this never caused a problem indeed "Ms. Telfer often complimented the applicant on her fashion style." according to the HRT. However one day she came in wearing an outfit which, from the sandals and anklet, to the short skirt and leggings, to the weird hijab (unlike the traditional one she usually wore) Ms. Telfer considered unprofessional. This was apparently also discrimination, as a woman has the right to wear any form of headdress she wants if her religion mandates that she wears a headdress. In other words, Muslim women have the inalienable human right to show up at the office in a baseball cap or Mickey Mouse ears, and win tens of thousands of dollars if anyone suggests that is unprofessional. Gotcha.
The Superior Court pointed this out in vivid language.
Wow, did you see that wizzing by the left hand window? Logic! Savor the moment kids, you may not see that again for a long time.
The Superior Court has also determined that it is not de facto discrimination if a man is in the room during a discussion of acceptable female business attire. Good to know.
There were other matters in the ruling but these were the primary ones.
One of the most grotesque errors on the part of the HRT was drawing negative inferences from the absence of a key witness, and thus working on the assumption that there was no reason to believe the accusations against Ms. Saadi which led to her termination. What the HRT left out of their ruling but the Superior Court caught and harped on, was that the key witness was going to testify until he was called away by a family emergency, tried to submit his testimony via sealed envelope which the tribunal refused to even open, and that Ms. Telfer, being unrepresented, was too ignorant of her rights to request an adjournment until he could testify. The Superior Court considered all of this horrifyingly unfair, especially as the Tribunal arguably had a duty to inform Ms. Telfer that she had the right to adjourn, and the fact that they decided that Ms. Telfer was lying about Ms. Saadi because she failed to produce testimony that Ms. Telfer had tried to produce but the Tribunal had disallowed just compounded the travesty of the entire ruling.
The National Post and The Star had a lot to say about the fact that Ms. Saadi had her lawyers paid for by the government, while Ms. Telfer was unrepresented because she couldn't afford a lawyer. That the deck was stacked against Ms. Telfer by not letting her key witness testify. And that the government is now paying Ms. Saadi's fine while Ms. Telfer would have lost her house to pay hers.
As Ms. Saadi said, presumably after the Superior Court overturn, "I am a little bit surprised and a little bit confused about how the justice system works,”.
Aren't we all.
Although I think she and I would be referring to different aspects of the "justice" system.
And yes Faisal Bhabha, I am talking about you, and all your HRTO buddies.
As I always say, when The Star and The Post agree that the Human Rights system is out of control, it must be really, really, out of control.