Legal Feeds Blog
A British Columbia Human Rights Tribunal has dismissed a complaint filed by a Vancouver lawyer who alleges his former employer asked him not to bring his male partner to a firm social event, and that he remove references in his online firm bio to involvement in the Canadian Bar Association’s Sexual Orientation and Gender Identity group.
|Ellen Low, partner at Whitten & Lublin in Toronto, says complaints are best heard soon after incidents occur.|
The tribunal indicated to both Yuen and Direction Legal that the complaint was filed outside the six-month time limit in B.C. and requested submissions on its timeliness. The Code provides that a complaint must be filed within six months of the alleged contravention.
In determining whether acceptance of a late-filed complaint is in the public interest, the tribunal considers whether there is anything “particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints.”
“Where a complaint raises a novel issue on behalf of a vulnerable group, for example, that is a factor that may be considered in weighing the public interest in accepting the complaint,” the decision states.
In a decision issued Dec. 13 by tribunal member Barbara Korenkiewicz, the complaint was dismissed, rejecting Yuen’s reasons for delay in filing the complaint, saying they “do not weigh in favour of acceptance of the complaint in the public interest.”
Yuen alleged discrimination occurred on or about July 21, 2014 when he says Teng told him he should remove certain references from the Chinese version of his bio that appeared on the firm’s website, such as that he serves as national co-chairman of the CBA’s Sexual Orientation and Gender Identities Conference. He also claimed Teng told him on or about July 28, 2014 that he should not bring his male partner to the firm’s summer social event.
Yuen claims Teng said Chinese clients would not understand his being gay.
He described feeling “degraded, ashamed and worthless.” He ultimately resigned and left Direction Legal on Nov. 18, 2015.
When contacted by Legal Feeds, Teng stated in an email response: “Mr. Yuen’s allegations are unproven. We dispute such allegations. There was neither the need nor the opportunity to respond to same because of the tribunal member’s dismissal of his application for an extension of the deadline for filing a complaint.”
Yuen said he feared that if he filed the complaint while still employed by the firm he would be dismissed. He also stated that he delayed in filing, in part, because he had only recently learned that he could have filed a complaint.
Direction Legal argued that Yuen’s claim in that regard was not credible given that he is actively involved with SOGIC and has practised law in British Columbia for the past eight years.
“Ignorance of the Code, or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing,” noted the BCHRT decision. “Mr. Yuen has provided no additional information, and there is nothing in the materials to suggest, why he should be exempt from the application of this general rule.”
Yuen also said he delayed in filing the complaint, in part, following his departure from the firm because he was attempting to negotiate a settlement of outstanding issues between him and the firm. While the parties were ultimately able to resolve certain issues between them via an agreement reached on June 30, 2016, his discrimination complaint was not resolved.
The decision states that: “The Tribunal has held that it is in the public interest to encourage parties to enter into settlement discussions before having recourse to the Tribunal’s processes. In cases where parties were engaged in settlement discussions that commenced within the six-month time for filing, this might be considered a relevant factor when determining whether to accept a late-filed complaint.
“In this case, however, Mr. Yuen did not commence settlement discussions regarding the discrimination allegations until May 12, 2016, nearly 22 months after the alleged incidents occurred.”
Yuen argued further that he was employed by a law firm and that the firm should be held to a higher standard of conduct because they are all lawyers, and that lawyers “have an ethical duty to uphold the law and are leaders in society.”
But the BCHRT disagreed.
“In my view, a lawyer or law firm that is an employer has the same duties and responsibilities under the Code as any other employer —no more and no less,” wrote tribunal member Korenkiewicz, citing Asna-Ashari v. British Columbia (Attorney General), 2010; and Bola v. B.C. (Ministry of the Attorney General and others), 2007 BCHRT.
“This is a complaint concerning discrimination in employment on the grounds of sexual orientation, marital status and race. The Tribunal has frequently dealt with complaints of this nature on each of these grounds. There is nothing in the materials to suggest that the complaint raises an issue that has not already been addressed in other complaints before the Tribunal. Thus, I am not persuaded that the novelty of this complaint outweighs the lengthy delay in filing.”
Yuen says the tribunal should have accepted his complaint based on the reasons he cited. He told Legal Feeds he is still exploring other avenues regarding his complaints.
“As officers of the court, with a duty to uphold the law, lawyers should be held to a higher standard when dealing with issues of discrimination, especially at the workplace,” he said in an email.
He also notes limitation periods for human rights tribunals vary across the country.
However, Ellen Low, partner at Whitten & Lublin in Toronto, says that while the variation in limitation periods can be confusing, especially when the limitation period under the Canadian Human Rights Act is one year, complaints are best heard soon after incidents occur.
“There is an argument that allegations of this nature, which call for remedial action, are best served by a short limitation period so they can be addressed/redressed while the injury is fresh and not over a year after an allegedly discriminatory event,” says Low.
Ryan Edmonds, a labour and employment lawyer in Toronto, agrees that shorter limitation periods are not a bad thing, but he says he sees this case from both the employer and employee perspective.
“When someone is discriminated against or marginalized it’s a pretty significant thing, so to sit on something like that for two years is questionable,” he says. “The applicant here raises the age-old ‘I was afraid for my job,’ but it raises the question that if it happened and two years passes without further incident is it relevant anymore?”
He notes human rights tribunals receive so many claims they need to focus on cases that are “timely” and more “closely connected to an incident worth investigating.”
Halifax family flees after man firebombs home: police, Canadian Press
The discussion around the legalization of marijuana is heating up across Canada, especially because of the Liberal government’s decision to introduce legislation for legalization as early as next spring.
|Lawyer Nathan Gorham says legalization of marijuana could potentially lead to the decrease of violent crimes.|
“I don’t think that people should anticipate that the backlog of the courts is largely due to prosecutions from minor possessions of marijuana,” says Edward Prutschi, partner at Adler Bytensky Prutschi Shikhman Criminal Litigation, when asked whether legalizing marijuana will assist in dealing with court delays. “It will create some opening though because people are not going to be prosecuted for these types of cases anymore and I think that is to the benefit of the system as a whole . . . and it will be a benefit from a police resource perspective.”
Nathan Gorham, partner at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP, agrees with Prutschi, but he adds that he thinks the legalization of marijuana could potentially lead to the decrease of violent crimes often associated with gangs and the selling of marijuana at street level — robbery, assault and even murder — although he is unsure if the potential decrease in these crimes would be enough to make a difference within the justice system.
“If marijuana is decriminalized, presumably we’re not going to have street-level dealers anymore who are able to make a lot of money because there’s a high markup on it. Then you’ll see less of the cases where those dealers are carrying guns or those dealers are the victims of robbery or there’s competition between one another that leads to shootings and other violence,” he adds.
The federal government’s task force appointed to study how marijuana could be regulated and sold once legalized issued a report in early December. The Task Force on Cannabis Legalization and Regulation’s report contains more than 80 recommendations on how the government could tax, market and distribute marijuana.
The task force recommends that sales be restricted to those 18 and older, with a public possession limit of 30 grams of dried cannabis. Unlike cases of marijuana possession (those below the set legal amount), cases that won’t disappear from the courts are those involving trafficking and growing marijuana.
In terms of sentencing, Prutschi thinks it will be situational. For example, a person who is just a few grams over the legal limit will probably be diverted out of the legal system, whereas a person selling it at street level in large quantities without paying the taxes or having a licence to do so will receive a much harsher sentence.
Since those other related activities aren’t being legalized, he predicts those offences will be treated the same way in the courts, perhaps even with the current level of punishment depending on the situation.
Prutschi also predicts that laws surrounding other drugs will see no impact, especially because there’s a “significant difference between the [health] risks that are posted by marijuana” compared with drugs such as cocaine, heroin or fentanyl, for instance.
On the other hand, Gorham anticipates that marijuana legalization might open up the dialogue on whether or not other illicit drugs should be treated with a “health-based” approach rather than an “enforcement” approach. For example, if a health-based approach is taken, more safe injection sites could be built so people wouldn’t be forced to take those drugs “underground.” Similar to what he believes would happen with marijuana, this would perhaps limit other more serious and violent crimes related to these other illicit drugs.
“If the marijuana policy works out, then it may be an important stepping stone to opening up the conversation for change in regards to other illicit substances and how we try to target them and assist the people who are addicted to them,” says Gorham.
Saskatchewan woman found after going missing in Ontario, Canadian Press
Three people injured in Highway 401 crash in Ajax, Canadian Press
Doctor’s sex abuse acquittal highlights ‘problematic’ Ontario law, The Toronto Star
B.C. judge orders prisions to fix isolating ‘enhanced supervision’ program, The Globe and Mail
Three men made millions by hacking merger lawyers, U.S. says, New York Times
Tunisian detained as a possible accomplice in Berlin attack, New York Times
Judge indicts former Argentine president in corruption case, Associated Press
Toronto corporate securities lawyer Geoffrey Taber, his wife Jacquie Gardner and their two children are believed to have perished in a tragic Christmas Eve fire at a cottage near Peterborough.
|Geoffrey Taber was a corporate securities lawyer at Osler, Hoskin & Harcourt LLP in Toronto.|
The family is said to have lived fulltime in the Riverdale area of Toronto. Taber was a partner at Osler, Hoskin & Harcourt LLP.
In a statement, Dale Ponder, managing partner and chief executive at Osler, Hoskin & Harcourt LLP said: “Geoff Taber was a generous, vibrant and wonderful person, a legal visionary and beloved partner at Osler. There are no words adequate enough to express the depth of sorrow we feel about the tragic death of Geoff and his beloved wife Jacquie and sons Scott and Andrew.”
In a message on the firm's website it states Taber was "at the forefront of understanding the importance of the technology sector to Canada and was the founder of Osler's Emerging Companies Group. He advised many of Canada’s emerging and later stage companies as well as venture capital investors. He encouraged entrepreneurship through his work with key industry initiatives such as the Rotman Business School's Creative Destruction Lab and The Next 36, Canada's Entrepreneurial Leadership Institute."
Gardner was “an exceptional corporate lawyer initially at Osler, then as general counsel & secretary at Altamira Investment Services.”
“Geoff and Jacquie were first and foremost loving parents to their two remarkable sons. We will miss them terribly,” Ponder said.
Subscribe to Legal Feeds
- Elizabeth Raymer
- Patricia Cancilla
- Jennifer Brown
- Mallory Hendry
- Alexia Kapralos
- Alex Robinson
- Tim Wilbur
- Gabrielle Giroday
- Karen Lorimer