Lawyer slams HRM’s freedom of speech defence for racial abuse

Either you have corporate values which say racial epithets are allowed, or you're confused about what hate speech is, says attorney Nasha Nijhawan.

Time to pull the dinger on widespread racial intolerance. - VIA INSTAGRAM
Time to pull the dinger on widespread racial intolerance.

The municipality apparently feels its employees have a Charter right to call each other racial epithets.

It's the bizarre defence that lawyers representing HRM used during an independent board of inquiry into complaints of racial discrimination at Halifax Transit's Burnside warehouse.

As exposed earlier this week in the board's decision, Black and Indigenous employees in the garage were subject to targeted hate speech and violent abuse for years. During the course of the hearings, HRM's attorneys used a Supreme Court case involving the public distribution of homophobic flyers to argue those comments “fall within the scope of constitutionally protected expression.”

Inquiry chair Lynn Connors didn't agree and the application was rejected, but the odd defensive strategy drew the attention of local civil rights attorney Nasha Nijhawan (of Nijhawan McMillan).

“We're not talking about expressing political views in a workplace,” she says. “We're talking about racist epithets.”

Nijhawan spoke with The Coast about the board of inquiry's decision and HRM's 12-year-long legal battle against tolerance in its workforce. The interview has been lightly edited for clarity and trimmed in parts due to a recorder malfunction. Our apologies to Nijhawan.


What was your reaction to the decision?
I think it's a really interesting example of how broken our human rights system is. The timeline on the complaint, I don't know if you noticed when you read it, but it was filed in 2006 about events that happened, starting in I think 2000. But it doesn't go to a hearing until 2016 and 2017. It's not until March 2018 we get a decision, and it's only half a decision. There's no remedy. There's only a finding of discrimination. That's a remarkably slow and painful process. You see in the evidence given by a lot of the complainants that nobody remembers what happened 10 years ago. It's actually ludicrous to expect people to remember precisely what happened 10 years ago and so it's not even an effective adjudicating process.

The other interesting thing about it is this is a complaint not brought by the individuals who were directly involved, but by a friend of theirs. Those two individuals—an African Nova Scotian individual and an Indigenous individual—are the ones who were actually targeted. And the complainant, he was targeted for supporting them. It's this weird, one-step-removed.

It came out that one of the main instigators, Arthur Maddox, was fired last week after the decision had been made. No one will confirm he was fired specifically because of this, but it seems likely after 18 years this decision finally triggered his dismissal.
Which doesn't make good sense, frankly. It just doesn't. Not even from a workplace law perspective.

I'm not sure what would have changed with this coming out...
Nothing. The employer had all of the same information today that it did before the decision was rendered. Now, they also have an independent adjudicator saying this guy did these things and that's now allowable.

The three men involved first went to HRM and filed an official complaint that went nowhere, which I guess is why they then went to the Human Rights Commission.
It does seem that way, and that is partly why I think the adjudicator found HRM vicariously liable. Because the employer or the workplace is only responsible for their actions, their own actions. One of the things procedurally they tried to do was try and get individuals named as respondents...

Which caused one of the long delays.
And that request was denied. I'm always so fascinated by the position government lawyers take in these types of cases. I think it reveals something about the culture of that government. They take instruction from non-legal officials, generally. It's not always the case, but usually, there's a policy perspective. We saw 10 years of litigation under the Harper government which was like this—fight to the death, take unreasonable positions about what the law really is and just deny, deny, deny.

Was it weird to try and get the harassing employees brought in as respondents? To me that seems like they're trying to pass the buck.
It's usually the opposite. Usually, the complainant names the individual, as well as the workplace, and the individuals fall off because you can't sue an individual under human rights law. If you're mean to me, if you call me a name and we're just two private citizens—there's been a recent development in the law about this, about whether a workplace can be liable for what other people in the workplace are doing—but usually you don't see workplaces saying, “Actually, this is our current employee's personal problem and you should name him.” It's just not consistent with the way these cases are usually run, which is why it wasn't granted.

But you know, when littigation lasts this long, there's two things that could be happening. One is, likely in this case, our human rights system is notoriously inefficient. This isn't the first case we've heard of that's taken 12 years. The other thing is that one of the litigants is taking a kitchen sink approach to the defence and they'll just do everything to put it off, put it off, put it off. If you have clear evidence that you had a totally poisoned workplace by racial epithets and you're still employing one of the main offenders and your approach isn't, “Hey, we have a problem. Let's take some steps to address this. Let's settle this case,” I think it really says something about how hard they're trying.

“If you didn't take reasonable steps—if you weren't duly diligent in addressing someone's complaints—than you're condoning it and you're permitting it to happen and it becomes your problem.”

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How unusual is the freedom of speech defence in a case like this?
I haven't seen it used by an employer, personally. I haven't done a survey of the case law. That case was about a constitutionality of the provision of the Saskatchewan human rights code that prohibited leafletting or publishing hate speech. In that case, the person was pamphletting a neighbourhood. It was homophobic comments about the public school system and he was leafletting people's houses and putting posters up. The court looked at the speech and said two of these pamphlets qualify as hate speech. It's a limitation that's permitted by law. This is the way our Charter works. The government can put in laws or policies which technically breach fundamental freedoms but there's a test under Section One of the Charter which the court will employ to see if whether or not that limitation is justified. In the Whatcott case, they sort of defined what hate speech is and found that the provision of the [Saskathewan human rights] code did serve a purpose which was useful to our society and should stand.

I don't know what HRM's submissions were. Certainly, they have obligations not only under the Human Rights Act but also under the collective agreement to provide their employees with a discrimination-free workplace. And we're talking about straight up racist epithets. We aren't talking about people expressing anti-immigration opinions, for example. We're talking about someone saying the N-word and other racist graffiti. We're not talking about expressing political views in a workplace. We're talking about racist epithets. That is what we call hate speech.

Targeted directly at individuals.
And I understand why they fought on the issue of vicarious liability. “Are we really responsible for what individuals do in our workplace?” And the law says, yes. If you didn't take reasonable steps—if you weren't duly diligent in addressing someone's complaints—than you're condoning it and you're permitting it to happen and it becomes your problem.

There's been a lot of outrage directed at the union for fighting to get Maddox back to work in 2001. If there were policies in place with some teeth, though, maybe he doesn't come back.
Yeah, I think a lot of people like to blame the unions. I'm not one of those people. I understand and believe in the function of the union. I think it's important for someone to get that process, and usually when a union wins it's because the employer didn't do it properly. It's because they didn't follow their own policy or they messed up in some way. If someone is properly disciplined, there are ways to fire people if you want to where the union could not get them back.

Given everything in the decision, does the apology made by the CAO on Tuesday ring hollow?
I didn't see the apology. What did it say?

[Reads it]
OK. Great. So I have a lot of questions then about the position they took at that hearing, right? It's out of two sides of the same mouth. “Wait a second, maybe it's OK to call your coworker the N-word because that's protected speech? Maybe? Is it? We don't know.” Do you know or not? Either you have corporate values which say whether or not the Supreme Court of Canada might allow this, or you're actually confused about what hate speech is. That to me is the most baffling thing. I always do look at the positions governments take in these cases and what does this tell me about what your culture or what your values actually are. It's a bit alarming.

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