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January 31, 2014

zGender Identity and Gender Expression in Employment- Vanderputten v.  Seydaco Packaging Corp.

On June 19, 2012 the Human Rights Code (Ontario) was amended adding 2 new protected grounds of discrimination, namely “gender identity” and “gender expression”. The first interpretation of these new grounds was examined in the Human Rights Tribunal decision in Vanderputten v.  Seydaco Packaging Corp.

The applicant, Maria A. Vanderputten, had worked for the corporate respondent, Seydaco Packaging Corp., for a number of years as a male. Ms. Vanderputten worked in the plant which manufactured folding cartons and boxes. Ms. Vanderputten alleged that when she began the transition from living as a man to living as a woman, she was subjected to harassment, a poisoned work environment and eventually dismissed in violation of ss. 5(1) and (2) of the Human Rights Code. The corporate respondent denied such allegations, alleging that her dismissal was solely due to her attitude, involvement in workplace conflicts that were her fault, and insubordination.[1]

During the Hearing, Ms. Vanderputten testified that she was forthcoming in her requests of management to accommodate her sex reassignment. Such examples included her request to eventually be allowed to use the women’s washroom, as well as to change in the women’s change room rather than in the men’s change room. She further testified she had asked management to modify her shift time so as to avoid comments and harassment from male employees while changing. Ms. Vanderputten also complained to management that she was being called such terms as “faggot” and “fruitcake” by her co-workers.

Ms. Vanderputten alleged that her requests for accommodation were effectively ignored by her employer as they took the position that proof was needed, through medical or legal evidence, that Ms. Vanderputten was a woman. She was told that once such proof was supplied, then Ms. Vanderputten’s accommodations would be considered.

Under the “Code” employers have a legal duty to accommodate people because of their gender identity. The Ontario Human Rights Commission states that the goal of accommodation is to allow people to equally benefit from and take part in services, housing or the workplace. While the employer took the position that proof of “gender” was needed in order to accommodate Ms. Vanderputten, the Tribunal took a very different position.

Although the applicant admitted to times when her own conduct was inappropriate, her conduct did not provide a reasonable defense for the corporate respondent. The Adjudicator stated that the right to freedom from discrimination in the Code also includes an obligation to reasonably investigate and address complaints of discrimination and harassment.

In the Tribunal’s decision, the Adjudicator stated that accommodation must be based on the individual, how they identify themselves. He referenced the Ontario Human Rights Commission Policy which states gender identity is linked to an individual’s intrinsic sense of self and, particularly the sense of being male or female. [2]  The Adjudicator concluded that insisting the applicant be treated in the same manner as men until her transition was fully complete was discrimination, as it failed to take into account the applicant’s needs for identity.” [3]  Further, the employer discriminated against Ms. Vanderputten and contributed to the poisoned work environment through its “failure to insure a safe work environment and to respond reasonably and adequately to the applicant’s complaint of harassment based on sex.”[4]

As a result of the employer’s conduct, Ms. Vanderputten was awarded $22,000 in damages for injury to her dignity, feelings and self-respect. She was also awarded 8 months worth of lost wages. The Tribunal has the power to grant public interest remedies, as such, the employer was ordered to develop a formal human rights policy, an anti-harassment policy, and to undergo human rights training.

The takeaway is this: it is incumbent upon employers to continually self-educate in the areas of employment and human rights law, while paying particular attention to their responsibilities of accommodation and safety for all their employees.


[1] Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977(CanLII). Para. 1

[2] Ontario Human Rights Commission Policy on discrimination and harassment because of gender identity p. 6

[3] Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977(CanLII). at para. 66.

[4] Ibid., at para. 72

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The question of whether or not the appearance of “youth” is a BFOQ was raised in Ouwroulis v. New Locomotion.

On September 16, 2008, Kimberly Ouwroulis filed a Human Rights complaint alleging discrimination based on her age. The complaint was filed after she was terminated from a strip club, allegedly, for being too old.[1]  Ms. Ouwrouls was employed as an exotic dancer and was 44 years of age at the time.  She was told, “they were going in a new direction with younger girls,” said Ouwroulis.
The Code
Under s.24(1)(b) an employer may discriminate on the basis of the age of the applicant only if age is a reasonable and bona fide qualification because of the nature of the employment.  In order for a job requirement to be considered a bona fide occupational qualification (BFOQ) the job requirement must pass the three-part test set out by the Supreme Court of Canada in the Meiron case.[2]  The Court held that the discriminatory rule or requirement must be:

(1)  that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2)  that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

(3)  that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.  To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.


Ouwroulis v. New Locomotion, 2009 HRTO 1498 (CanLII)

As a highly publicized case, experts quickly asked the question whether or not age, for an exotic dancer, is a BFOQ?  Ms. Ouwroulis contended she was fired not because she was too old to do the job, but because of her age she no longer exuded the appearance of the appeal that the club was wanting its dancers to portray.[3]  If Ms. Ouwroulis  were able to submit sufficient evidence to this effect, the onus would be placed on the employer to prove by virtue of the Meiron  test, that “looks and the appearance of youth” in their particular establishment are a BFOQ.  In essence it might not be her “age” per se with which the employer takes issue, but rather “age” as it relates to her physical appearance of youth, for which there is no objective test.

Conclusion
The Human Rights Tribunal of Ontario eventually dismissed the application as abandoned.   Experts confess that this was an application which does not often appear, yet, regardless it would have tested the mettle of the BFOQ, the Code, and the employer’s ability to terminate an employee based on age.


[1] Employment Law for Business and Human Resources Professionals, 2nd. 2010, Kathryn K. Filsinger

[2] (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3

[3] http://blog.toronto-employmentlawyer.com/exotic-dancers-look-to-get-their-fair-shake

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July 9, 2013

Eyewitness identification evidence  is one of  of the traditional exceptions to the Hearsay Rule, as it allows the witness to give evidence as to the identity of an accused who the witness is able to identify visually or in any other sensory manner. [1]  For example something the witness saw, heard, touched. etc.  This is often referred to as direct evidence—a means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact.[2]  What he or she says in their testimony is direct evidence of a material fact.  In its simplest form, it is simply an additional form of evidence for the trier of fact to weigh in the decision-making process.

Case #1

R v. Henry, 2010 CarswellBC 2863, 2010, BCCA462

Police arrested the appellant May 12, 1982 in connection with 20 recent sexual assaults involving women. None of the complainants previously knew her attacker. As the accused refused to participate in the physical line-up, he was forced into the line-up and one officer held him in a headlock. 11 of the complaints viewed him that day in the police line-up.  Another complaint viewed a photograph of him in a headlock.  The judge in his charge to the jury stated the Crown had suggested the appellants obvious reluctance to participate in the line-up “leads to an inference of consciousness of guilt on his part.” The appellant judge found the trial judge erred by instructing the jurors that they could infer consciousness of guilt from the resistance of the appellant to participate in the line-up. The legally wrong instruction on consciousness of guilt provided “…an irresistible path of reasoning to guilt.

 Case #2

R. v. Hinse [1995] 4 S.C.R. 597 (Judicially Considered 27 Times)

December 12, 1961 five armed individuals forced their way into a private home, beating and robbing a couple.  A short time afterwards, through a casual encounter at the police station, one of the victims identified the applicant as one of the armed perpetrators.  In a subsequent police-line up, the victims confirmed the identification of the appellant. The appellant offered an alibi with witnesses to corroborate his whereabouts.  He was found guilty of armed robbery and sentenced to 15 years.  After serving his out sentence, in 1991 he challenged the original verdict in the Quebec Court of Appeal.  The Court held that the original conviction could not be maintained in light of the fresh evidence presented by the applicant, inter alia, “the reliability of the original line-up identification and the veracity of the surrounding circumstantial evidence.”  The appellant judge stated, “the evidence could not allow a reasonable jury properly instructed to find the appellant guilty beyond a reasonable doubt…the appropriate remedy is an acquittal.”


[1] Canada Evidence Act, RSC 1985, c C-5, s 6

[2] Black’s Law Dictionary 4th edition. p.546. Is that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called “indirect.”

identClick on the image to view presentation

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July 7, 2013

The 3 Rules of Excellence in Direct Examination
It’s been said that  building a successful case is like carefully piecing together a mosaic using facts. The purpose of direct examination is to elicit from your witness the

mosiac1evidence you need to satisfy the elements of your case.[1]  It is not merely a gesture in a general direction, but rather a carefully laid out course of action.  These three rules will improve the effectiveness of your direct examination.

Rule #1. Remember the trier of fact is only human.[2]  Humans crave logic.  We need things to make sense. You don’t want the trier of fact expending energy or attention trying to understand your version of the facts.  Remember humans create pictures in our minds, a skilled advocate has the ability to place their “picture” of the case, before the trier of fact.  Your questions should guide both your witness and the trier of fact through the relevant “who, what, where, why, when and how” of your case.  Ask questions that allow your witness’s answers to reconstruct a logical picture as detailed and as vivid as possible.

Rule #2. Remember your witness is only human.  Our ability to perform tasks (including recall!) diminishes under stress.  To avoid this pitfall prepare your witness factually, as well as emotionally.  Explain to them the bigger picture of the case and their role, specifically their evidence which needs to be heard by the trier of fact.  Ask your witness the questions you intend to ask, beginning with introductory questions such as—name, age, address.  This is important as it allows the witness to recall and answer confidently, helping to build their confidence level and to reduce any nervousness.[3]  Finally, encourage your witness.  Both encouragement and preparedness will lead to a better performance.

Rule #3. Remember how humans remember.  Arrange your questions in an order that tells the story, but not necessarily in chronological order.  Huh?  Although this approach might seem counter-intuitive, let me ask you this:  Have you ever been into a car accident?  When you retold the incident, did you ever begin with what you ate for breakfast that morning?  Unlikely.  You probably began at the event itself,  “ I got hit by another car on my way home!”  Then you went back and filled in the details.  When you present your witness’s version of the facts through questioning in this chronology, you take advantage of the principles of primacy and recency which states people (even judges) have a tendency to focus more closely on what is presented first and last.[4]   Your questions should encourage your witness to begin with the incident, followed by a chronological explanation of the facts leading up to the incident.  This way the trier of fact will have heard what may be the most important part of the testimony, a second time and will remember the key facts that much better throughout the trial and in closing arguments.

These three rules can aid in helping you to build the “fact” mosaic of your case, a very important picture for you as the advocate, but even more so for your client.


[1] Arlene Blatt and JoAn Kurtz, Advocacy for Paralegals, Edmond Montgomery Publications 2009 p. 49

[2] J. Alexander Tanford, The Trial Process: Law, Tactics and Ethic.4th ed., (LexisNexis, 2002). p. 201

[3] Ibid., p. 218

[4] Faculty, Criminal Law Department, The Judge Advocate General’s School, The Art of Trial Advocacy July 1998, The Army Lawyer  • DA PAM 27-50-308

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March 15, 2013

contractWhat is a Contract?

This issue was decided for better or for worse in the seminal Supreme Court of Canada case,  Murphy v. McSorley.  Read how…this Canadian case from 1929 went on to change  the nature of contracts and how this decision helps to define a contract even today…

Murphy v. McSorley, [1929] S.C.R. 542
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

In late 1926 the parties entered into a contract of lease for one year with Murphy  given the option to purchase the premises for the amount of  $45,000, with a cash payment of $15,000 and “balance to be arranged”.  Shortly before the expiry of the one year there were subsequent meetings where, based on the option within the contract, Murphy offered to purchase the hotel.  Each time McSorley refused, as he insisted the balance of $30,000 to be paid “practically cash” or be placed in escrow in the bank pending delivery of title of the hotel.  Murphy, resistant at first, eventually agreed to the terms, but it was past the last day of the year stated in the option.  When McSorley refused to accept the offer, the Murphy filed a lawsuit claiming breach of contract.

The case went to the Supreme Court of Canada where a very important question was asked…

“Was there really a contract?…”

The Chief Justice stated, “an agreement which leaves one of the essential terms to be determined by the parties mutually at a future time is unenforceable.”  He indicated the wording, “the balance to be arranged” suggested a further understanding was needed to be reached between both parties for the contract to be enforceable, and by the time Murphy had decided to accept McSorley’s terms, it was simply too late as the 1-year period stipulated in the terms had expired.  The Chief Justice stated, “the court cannot make for the parties a bargain which they themselves did not make in proper time.

In other words in order for there to be a contract there must be both offer and acceptance.  In Murphy v. McSorley there were numerous offers but no acceptance until after it was too late.   But more importantly, Murphy v. McSorley demonstrates that terms of a contract must be clear enough to be enforceable-  “balance to be arranged” was simply not clear enough to be enforced by the courts.

The relevance of this decision established Murphy v. McSorley as seminal case in Canadian Law further establishing the legal definition of a contract, while at the same time clarifying the role of the Courts in contract disputes.  The Murphy v. McSorley decision has been referenced extensively in subsequent contract disputes such as Bonilla v. Ciurariu,[2]  Manparr v. Canada,[3]0723922 B.C. Ltd. v. Karma Management Systems Ltd.(DBA Madame Cleo’s)[4] and similar case law where the terms of a contract are called into question.

Summary

What can we learn from Murphy v. McSorley?   There must be offer and acceptance, and terms must be clear.  If parties in a contract leave any part of the contract to be decided upon at a future date, they may very well run into the same legal entanglements as Murphy and McSorley.

Click Here to download the 1929 Supreme Court of Canada decision (Canlii)


[1] Fridman, Construing, Without Constructing, a Contract, 76 L.Q.R. 521 (1960

[2] Bonilla v. Ciurariu (c.o.b. Geo Construction), 2008 BCSC 925, at para. 77, quoting from Rafal (c.o.b. RJG Contracting and Management) v. Legaspi, 2007 BCSC 1944, at paras. 29-30.

[3] Manparr Enterprises v. Canada (1999), 173 D.L.R. (46′) 243 (B.C.C.A.).

[4] 0723922 B.C. Ltd. v. Karma Management Systems Ltd. (DBA Madame Cleo’s) 2008 BCSC 492

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March 7, 2013

How to Analyse A Fact Situation

Often people may be unsure of their legal rights or even the pertinent facts surrounding their legal situation.  It is not unusual for a client to be able to tell their story, yet still be unsure of their legal rights and/or obligations.  As a result they will often seek out a lawyer or a licensed paralegal for a legal opinion.

Below is a chart I’ve designed to help systematically analyze a case, and to decide on a proper course of action, if any.  This chart is applicable to both the individual who might be thinking of litigation or the legal professional.  Please note there are many excellent approaches to analyzing a case, but I find this method to be the most systematic as well as thorough.  This approach is suggested in Legal Research: Step by Step.  3rd Edition.  Kerr, Kurtrz and Blatt.
Paralegalfactsituation

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1 Comment

  1. Very good site. Well worth the effort you put in to make this. Good job.

    Like

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