Friday, August 17, 2007

Steyn gets it wrong

Babble on.

I was involved in a comments-section argument over at John Donovan's place, regarding a Mark Steyn post at The Corner:

Canada's ghastly human rights commissions are an an ersatz-judicial abomination to enforce PC bullying. In recent years, they've ordered a Catholic school in Alberta to employ a practising homosexual, fined a Christian printer in Toronto for refusing to print a gay activist group's publicity material, used their powers to support the suspension without pay of a evangelical Christian school teacher who had written to his local paper expressing concern over pro-gay education programs. In all case, the human rights commissions operated on the more or less consistent principle that "religious belief" was fine as long as you kept it furtive and walled up inside your private home but it did not have the right to impact on who you employed, what clients you accepted*, or even what views you expressed in the newspaper.

Apparently, it's different for Islam.


Steyn may well be right, but the case he's chosen to highlight doesn't make his point.

Why? Because it was a settlement, not a ruling. That's right: the B.C. Human Rights Commission didn't rule on the case, the parties involved settled it before the tribunal could hear the arguments.

The tribunal was to hear Mr. Gilmour's case on Monday; however, a settlement was reached last week with Mr. Saidy and his taxi company. "The parties have agreed ? to resolve Mr. Gilmour's complaint by balancing the rights of persons with seeing-eye dogs to obtain taxi service with the rights of Muslims to follow their religion," the settlement reads.


If you don't like the way this particular human rights complaint worked out, don't blame the Commission, blame the parties who agreed to the settlement.

My thanks to the confusing, but entertaining Alan of Gen X at 40 for pointing that out to me...eventually...after making me dig through his convoluted rhetoric at length.

Babble off.

Update: Blazing Cat Fur seems to want to twist the discussion around without proper deference to the realities of this particular case.

Scrolling through BCF's comments to his own post, you'll discover a gross misrepresentation of the case and its scope. It was a settlement, not a decision, and so set no legal precedent. It is binding upon no-one but the parties to the agreement, and restricts no other person's right to file a discrimination complaint.

I have that perspective separately from two different Canadian lawyer friends.

That is to say, if another blind patron is refused service by a Muslim driver because of a guide-dog, the blind patron can file a discrimination complaint with the BCHRC - even if the driver abides by the rules laid out in the Gilmour settlement by ordering another cab and waiting with the blind patron until that other cab arrives. This settlement doesn't restrict any future complaint in the slightest, or reliably predict its outcome.

I'd love to see the BCHRC forced to actually make a decision in a case like that, because I think this settlement stinks. I have little confidence the BCHRC would make the right decision.

But, unlike Steyn and BCF, I'm not willing to condemn the BCHRC for a decision they haven't yet made.

20 Comments:

At 1:16 PM, Blogger The Strong Conservative said...

I think Steyn's point is that there never should have been a commission hearing to begin with. Canada has a civil system for a reason, what does a democracy need a human rights tribunal for? I can see the need in Rwanda, East Timor, and Iran, but not in Canada. That people settled was probably because of fear, intimidation, exhaustion, and money.
I would have assumed a conservative would agree with Steyn on that point.

 
At 1:18 PM, Blogger GenX at 40 said...

Not to undermine my own point but it is not so much that they simply settled but these settlements is far more based on the particular facts and the particular outcomes that the parties can be happy with than with the hard law of previous rulings - which would in some way guide but not ultimately determine the settlement.

I know you think that is legal weaselese but what I mean to point out that there is a heck of a lot of organic rubber-hitting-the-road. Plus, the taxi firm not the taxi driver was the settling party. He likely played the role of embarassed schlep in the whole thing.

 
At 1:24 PM, Blogger GenX at 40 said...

TSC cross posted with me. If that is the point it was not made and it would be silly. research the history of good the Christian or generic agnostic folk of Canada denying services, employment and other commerical rights to whatever is otherwise available in the marketplace.

I would expect any conservative to support the open marketplace as a means of maximization. I think TSC might mean really something like libertarian ot whatever.

 
At 2:25 PM, Blogger Babbling Brooks said...

I think Steyn's point is that there never should have been a commission hearing to begin with.

If he'd made that argument I might have agreed with him; I'm not a fan of the HRC idea, caught between its supposed mandate and the rulings of various courts.

But if you look at the last two sentences of his that I quoted, you'll see a different message - at least I do:

In all case, the human rights commissions operated on the more or less consistent principle that "religious belief" was fine as long as you kept it furtive and walled up inside your private home but it did not have the right to impact on who you employed, what clients you accepted*, or even what views you expressed in the newspaper.

Apparently, it's different for Islam.


It seems clear to me that Steyn is bemoaning the lack of consistency in HRC rulings that deal with religious freedoms, giving little weight to Christian beliefs, and more weight to Muslim ones.

All I'm saying is that this case doesn't support that conclusion, as the HRC in question never made a ruling on the matter. Who knows? They might have forced the cab company to provide service, period, no exceptions (although I somehow doubt it). We just don't know, as it was settled before it could ever get to that stage.

 
At 3:04 PM, Blogger David said...

Steyn has been wrong about many things - in particular, most of his predictions for Iraq.

I'm not sure why people even listen to him anymore.

 
At 3:08 PM, Blogger Blazing Cat Fur said...

Damian you make a good point.
I agree it was a settlement, however it was issued by the tribunal. Does this mean the settlement will be allowed to serve as precedent in future actions? I do not know if a settlement issued by the tribunal holds legal weight.

 
At 3:18 PM, Blogger Blazing Cat Fur said...

PS. I updated my post to link to yours. Lesson learned, never post past your bedtime;) The original Star piece I relied on was short on detail but that is no excuse, though I genuinely wish it were.

As I stated earlier whether this is allowed to serve as precedent for having been a settlement issued by the tribunal remains to be seen, but I ain't a lawyer.

 
At 5:39 PM, Blogger Blazing Cat Fur said...

It's a tough call on whether this will constitute a precedent but none the less one has been set, the settlement is binding only to the North Shore Cab Company.

Do note that settlements are arbitrated by BCHRT members, it's just another means offered to resolve disputes. Settlements are also enforced:

Rule 23 - Enforcement of Settlement Agreements

Section 30(1) of the Code provides that, if there has been a breach of the terms of a settlement agreement, a party to the settlement agreement may apply to the British Columbia Supreme Court to enforce the settlement agreement to the extent that the terms of the settlement agreement could have been ordered by the tribunal.

 
At 11:55 AM, Blogger Blazing Cat Fur said...

BB we are going to have to agree to disagree on this.

The settlement process is a formal procedure of BCHRT, mediated by the BCHRT and results are enforced under law. They would not issue settlements they have no intention of enforcing so give me a break.

From the van Sun article: "The agreement, issued by the tribunal" see issued by the tribunal got that;)

The next Blind guys rights have already been circumscribed by the terms of this settlement- he must launch a complaint in order to seek redress- don't you see that?

As for precedent, who says I am wrong? Seems someone is jumping to conclusions. I never argued it was a viable precedent only that it might be considered a viable precedent. A reasonable assumption and one I stand by as do you yourself.

I quote you from my blog:

"This isn't to say that the BCHRC might not like the "balance" struck in the settlement, and choose to adopt it in a future ruling in the event of a similar complaint, but we don't know that."

As I also stated even if Blind Guy No. 2 wants to sue North Shore Cab, who is liable?

Not the Muslim - he is following North Shore cab Policy.

Not North Shore Cab - they were mandated to enforce a policy by the BCHRT.

Good luck to the Blind Guy trying to sue the BCHRT.

That the BCHRT issued a settlement they orchestrated and will enforce it amounts to approval.

 
At 12:28 PM, Blogger Babbling Brooks said...

Wow. BCF, you've completely missed the most major aspect of the fact that this is a settlement, and not a ruling:

As I also stated even if Blind Guy No. 2 wants to sue North Shore Cab, who is liable?

Not the Muslim - he is following North Shore cab Policy.

Not North Shore Cab - they were mandated to enforce a policy by the BCHRT.

Good luck to the Blind Guy trying to sue the BCHRT.


North Shore could easily find themselves on the wrong end of a complaint, should another blind patron decide the new policy just isn't good enough. Just because Gilmour said it was OK, doesn't mean any other patron is bound by Gilmour's standard.

Look at it this way: let's say Gilmour had decided to drop his complaint altogether before it went before the Commission, and the BCHRC announced that, as the resolution of the complaint. Would the next blind patron refused service by North Shore not be able to file a complaint for discrimination? Of course he would, since Gilmour's choice doesn't bind anyone else.

I'm no fan of the Human Rights Commissions, but you're making assumptions here that have no grounding in reality, BCF.

 
At 12:40 PM, Blogger Blazing Cat Fur said...

No one is arguing that Blind guy no. 2 could not launch a complaint so I do not know where that is coming from. That Blind Guy No. 2 has to launch a second complaint at all means his rights have been circumscribed by this ruling. No one should have had to launch this type of complaint to begin with. That the BCHRT mediated & issued this settlement and that settlements are enforced by law may serve as a viable precedent in future complaints, as you say the BCHRT may like the balance struck.

Who is missing the point again?

 
At 1:04 PM, Blogger Babbling Brooks said...

That Blind Guy No. 2 has to launch a second complaint at all means his rights have been circumscribed by this ruling. No one should have had to launch this type of complaint to begin with.

That's how the system works, BCF: if you think you've been discriminated against, you have to file a complaint in order to get any sort of redress.

As I said over at your place, let's say that Gilmour had dropped his complaint entirely, instead of settling it before a ruling could be made. The next blind patron unhappy with his service by the taxi company would have had to...that's right, FILE A COMPLAINT!

Let's say the complete opposite had occurred, and that the BCHRC had ruled that taxi drivers absolutely had to transport dogs around in their cabs, religious objections be damned. If a cabbie refused to abide by that, the blind patron would have to...that's right, FILE A COMPLAINT!

In other words, this settlement changes nothing in terms of a blind patron's rights or responsibilities in enforcing those rights.

You keep on saying the settlement "may serve as a viable precedent in future complaints." In fact, in your comment earlier, you said "As I stated earlier whether this is allowed to serve as precedent for having been a settlement issued by the tribunal remains to be seen, but I ain't a lawyer."

As I've mentioned previously, I've corresponded with two different lawyers who say the settlement sets no legal precedent. Given that neither you nor I are lawyers, and that you were more reasonably willing to defer to legal expertise on this point earlier, I don't know why you're so firm on a point outside your expertise now.

 
At 6:01 PM, Blogger Babbling Brooks said...

Just had a third lawyer agree with my take on the precedent-setting issue.

 
At 6:39 PM, Blogger Redleg75 said...

And all because I asked a question!

Wheee!

I may not have changed a nation's Constitution, as Alan is said to have done... but I sure used up some electricity as we noodled it all about.

John of Argghhh!

 
At 3:20 PM, Blogger Blazing Cat Fur said...

I would suggest that this (see below) may call into question the issue of precedent as should end any dispute over the legal weight behind and or involvement of the BCHRT in the settlement. From this desription below from the Attorney Generals office a settlement and a ruling are 2 sides to the same coin.

And as I said on my site, Human rights Commissions operate in La La Land , what serves as grounds for precedent in the real world may not apply at all in La La Land.

BC Ministry of the Attorney General 2004/2005 Annual Service Plan Report. Page 64.


Link: http://www.bcbudget.gov.bc.ca/Annual_Reports/2004_2005/ag/ag.pdf


British Columbia Human Rights Tribunal

The Tribunal is responsible for accepting, screening, mediating and adjudicating complaints under the Human Rights Code. The Tribunal provides parties the opportunity to resolve complaints through mediation. Complaints that are not resolved through mediation proceed to a hearing before the Tribunal. The Tribunal is accountable to the legislature through the Attorney General and functions independently of government on all matters related to adjudication of complaints. Orders of the Tribunal are enforceable in the British Columbia Supreme Court.
For more information on this organization, please go to: http://www.bchrt.bc.ca/ *

As for wider public impact.That a Blind man with a guide dog could be refused service and have to launch a human rights complaint in this day and age is ludicrous to begin with.

That this settlement entails that a Second Blind Man must launch a second suit to in fact regain the right of service without facing discrimination or delay on any grounds is more ludicrous still and that to me translates as having a Blind man's rights circumscribed by this ruling.

This settlement verges on condoning discrimination by allowing religious rights to trump the rights of the visually impaired, and that is beyond the pale.

 
At 6:13 PM, Blogger Blazing Cat Fur said...

Damian I am hoist by my own petard I suspect. I will have to concede this matter to you.

I came across this little snippet in a pdf outlining The Settlement Process. Assuming,and I have no reason to doubt it, that this remains current policy then a settlement essentially absolves the BCHRT of responsibilty.

Link: http://tinyurl.com/ystgzq



D. Enforcement of Agreements

The Tribunal does not approve or enforce settlements. (Ouch)

The parties to the settlement are
responsible for the resolution of problems arising from the settlement or the settlement
agreement. Section 30 of the Code addresses enforcement of settlement agreements.

Section 30 of the Human rights code:

Enforcement of settlement agreements

30. (1) If there has been a breach of the terms of a settlement agreement, a party to the settlement agreement may apply to the Supreme Court to enforce the settlement agreement to the extent that the terms of the settlement agreement could have been ordered by the tribunal.

That little snippet effectively lets the BCHRT off the hook.

Well it was a good fight. No hard feelings. I will update my post.

What I still do not understand is haow North Shore can be mandated to implement a policy that does in fact impact citizens beyond the 3 original litigants in this settlement.

 
At 11:03 AM, Blogger Babbling Brooks said...

I appreciate you making that last comment over at my site as well as updating your own post, BCF.

 
At 11:14 AM, Blogger Blazing Cat Fur said...

Yea I appreciate my honesty too BB:) I was floored when I read that little snippet. Clearly the BCHRT has a great deal of power and very little accountabilty.

In my research I came across criticism of the tribunals.
When set up the intent was to expedite and make the process more accessible, goals which they have achieved.

However in the pre-tribunal days the BC Human Rights Commission would Cherry-Pick specific cases which they felt merited a ruling because they had a wider or provincial application. This happens less frequently now.

This case should have gone to a ruling, to my mind the BCHRT acted irresponsibly and counter to the greater good.

 
At 12:55 PM, Blogger Babbling Brooks said...

This case should have gone to a ruling, to my mind the BCHRT acted irresponsibly and counter to the greater good.

I'm not sure they have much choice if the parties agree to a settlement. But I'm hoping there's another blind patron out there who won't think waiting for another cab is good enough, and forces them to make a ruling on this.

We shall see what happens then...

 
At 1:57 PM, Blogger jonathan said...

I think you are all missing the point. The settlement is not enforceable by the Human Rights Tribunal, it is enforceable by the Provincial Supreme Court. Any legal settlement is a contract between the parties - your contract is breached, you seek redress in the civil court system. But more importantly, when you reach a settlement in a legal dispute, you do so based on your assessment of the likelihood of success. And the settlement is mediated by the BCHRT, i.e. they are the ones steering the negotiations - again, based on their assessment of fairness, based on the likelihood of success were the proceedings to go to a full hearing, based on the wording of the legislation and on previous cases. Is THIS settlement precedent setting? Of course not, any first year law student could have told you that, a settlement is a private agreement between the parties. However the way this one played out is a good indicator of how the BCHRT sees the law applying to this situation.

 

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