New Website

Summary: This blog is no longer being updated, but I encourage you to look at my new website at briangottheil.com

A few months ago, I posted that I would be discontinuing updates on Legal Gateways. I am now excited to announce that I have launched a new website, briangottheil.com, as an Author Site to promote Gateways (the novel) and connect with my readers and potential readers. I have finally confirmed the decision to go ahead with self-publishing the novel, and I am aiming to release it for e-book and other electronic formats by the end of 2014. Please check out the new site!

As for the Legal side of Legal Gateways, it will not be the focus of the new site, but there is a Brian as Lawyer page on the new site which provides a summary and some useful links on my current activity as a lawyer.

Thank you so much for reading Legal Gateways, and I look forward to seeing you at the new site.

Brian

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Some Bios

As this is a professional blog, I’ve kept the “About” page to a professional bio, but I thought that some readers might want a broader sense of me. So here are some other bios I’ve written about myself for other purposes.

From a writing point of view, here is the bio I penned for my Smashwords author profile:

I’ve been writing fiction since I was five years old, when I penned a charmingly mis-spelled epic about my then-favourite sport — “baceball” — and I’m very excited to join the Smashwords community and, in the near future, share some of my more recent writing.

I work as a labour and employment lawyer in Toronto, Canada — check out my blog (linked in this profile) for a sense of the interesting issues I deal with day to day. Outside of work, while I’m less enamoured than I once was with “baceball,” I’ve replaced it with a hobby and passion that I find even more creative, exciting, and easy to spell: swing dancing. In addition to the joy of dancing itself, I also serve as President of Toronto Lindy Hop, a not-for-profit swing dance organization, which I find incredibly rewarding.

Current writing projects: preparing my debut novel for publication, likely in late 2014, and making plans for a very different and more personal novel inspired by my experiences in the swing dance community.

And when it comes to dancing, I wrote this bio (also quite professional-sounding, in hindsight) for Toronto Lindy Hop:

Brian has been lindy hopping for more than a decade and has a passion for spreading the joy of the dance. Brian co-founded and served as the first President of the University of Toronto Swing Dance Club, one of Toronto’s most successful swing dance organizations. He then served Toronto Lindy Hop as Treasurer before moving to Ottawa, where he studied dancing and scene-building with Swing Dynamite. Brian is thrilled to be back home in Toronto with the opportunity to lead Toronto Lindy Hop in its mandate to enrich Toronto’s dance experience.

Enough about me, though. Why do you blog, and what’s brought you here?

Life Into Fiction: Writing and Swing Dancing

At the outset, I promised that this blog wouldn’t be only about law. I do have another employment law entry in the works, on the Ontario Court of Appeal’s recent decision on the Metron Construction tragedy (Torontonians will remember the workers who plummeted to their deaths on a faulty swing stage on Christmas Eve, 2009). Today, though, I feel compelled to turn to the other two interests that I intended to use this blog for: creative writing and swing dancing. I want to talk about both in the same post.

Yes, that means what you think it means.

Ever since I started dancing more than a decade ago, I’ve wanted to write a novel about the experience. The prospect is at once enticing and overwhelming. How do you leave one of your greatest passions untouched, unshared? But at the same time, how do you confine one of the most important parts of your life to a printed page? How do you turn life into fiction?

Fantasy makes that easy. With Gateways, I’ve written a story that takes place in a different world. Yes, the characters need to be human, the plot realistic, the players’ actions and reactions believable, but fantasy still carries with it an enforced separation. You don’t worry, when a fountain of shimmering light is cascading among two lovers kneeling in a magical cavern, whether you’ve strayed too far into the autobiographical. Debates over the fate of the New Empire’s colonies may have similarities with the settlement negotiations I engage in all the time, but there is an important difference in character.  

Writing about college students in Kingston, Ontario is more immediate. If it’s less epic, that only makes it more personal. That may be why I’ve never been able to write more than three or four pages of swing dance fiction. Lately, I’ve been thinking of trying again.

The problem is that swing dancing doesn’t translate well into fiction. It’s just too happy. Novels thrive on conflict and drama, while swing is about letting go of cares, losing yourself in the music. It’s about open, welcoming communities. Fun and laughter. Awe and joy. The petty differences that sometimes arise between organizers just don’t cut it as drama that people would actually get invested in reading.

I’m sure lots of other dances have that joyful character, but you don’t see stories about that. Dance movies are usually driven by perfectionism, competition, or both. A classic plot is the girl admitted to the Intense Academy of Dance Intensity, where the teachers are mean and the classmates are meaner. She has to work herself harder than she’s ever worked before without losing her old friendships, her sense of self, or that guy who keeps getting better-looking as the movie goes on. The climax is a performance or audition, where she bravely throws away everything the school has taught her and gives a brilliant performance from her heart, with Mr. Suddenly-Attractive watching secretly from the balcony.

It may be a great story, but it’s not a swing dance story. In a swing dance story, you spend the entire movie hugging lots of people, clapping while others dance, changing your shirt because you sweat too much, and trying to figure out how many times you can really afford to go to Rochester in the same year. Even if you set the story at a dance competition, your characters are still going to spend more time dancing socially, drinking, and posting updates on Facebook than they will training or competing.

So I came to the realization that if I ever want to write a story about swing dancing, the first step will be to make sure it’s not about swing dancing.

Swing can be a backdrop. It can be a setting, a world, the thing that draws the characters together. It can almost be a character itself, in the sense of a mirror that shows you who the other characters are in the way they relate to it. It can even be a plot point, or two or three, the syncopated beat of a song, hesitating before pulling the reader forward to the next breath. 

What it can’t be is the focus. The focus has to be on the characters, and the characters have to have their own stories outside of the dance, out in what some of us like to call the real world.

I’ve spent a lot of time over the last few days thinking about what those stories might be. The ideas are circulating in my mind. I have some great characters, and more and more jolts of plot and story. In fact, the entire ending sequence — which is always the first thing you need to map out — is taking some significant shape. It’s enough to make me wonder whether such a story might actually work.

There’s a lot more I could say about this idea, but let’s save some fodder for future posts. Besides, nobody likes spoilers, right? 

But I don’t want to get any hopes up. The vast majority of fiction writing projects that I start never get finished. Even Gateways was abandoned more than once along the way, before I decided to pick it up, dust it off and keep it going.

Just as important, Gateways is going to be my major writing project for some time. I really think it’s a great story that you’ll all want to read once it’s ready, and that is coming closer — I just heard today that I should expect to receive comments from my editor within the next week. But it’s nice to have another project percolating. It’s nice to know that there is a story, a story that’s kind of but not really about dancing, that’s bursting to be told.

Persons Quotes

We are one month away from Persons Day! That is the anniversary of the 1929 release of one of the most famous judicial decisions in Canadian history, the one that confirmed that, for the purposes of the Canadian Constitution, women are considered to be “persons.”

A couple of years ago, I gave a speech about the Persons Case at two small swing-dance-related events, and in honour of Persons Day 2013, I plan to post an updated version of that speech here on October 18. As I was thinking about that, I realized that I had never actually read the entire case from beginning to end, so a couple of days ago I did so. I was so excited about it that I thought I would share some of its best quotes with you.

1. Probably the most famous quote to emerge from the decision, at least in legal circles: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.”

2. A lesser-known line that is quickly becoming one of my favourites; the continuing relevance to today’s debates (see: marriage equality versus the “traditional” definition of marriage) is striking: “Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive.”

3. You have to love judges who don’t mince words: “The exclusion of women from all public offices is a relic of days more barbarous than ours . . .”

4. And, of course, the bottom line: “The word “person” as above mentioned may include members of both sexes, and to those who ask why the word should include females, the obvious answer is, why should it not?”

Dean Mayo Moran to review AODA

The Dean of the law school I attended, Mayo Moran (University of Toronto Faculty of Law), has been appointed to carry out a review of the Accessibility for Ontarians with Disabilities Act (AODA). I think she’s a great choice.

The AODA is legislation aimed at making Ontario accessible to people with disabilities. It does this in a somewhat unusual way: the main thing that the AODA does is to provide for committees to be created, and it is the committees who create the actual regulations (called “accessibility standards”) which organizations will have to follow. The committees must include representatives of disabled persons, industry, and government.

Although the legislation was passed in 2005, the first standard (relating to Customer Service) only came into force in 2010 for the public sector, and 2012 for the private sector. Three other standards have been drafted (Employment, Information/Communication, and Transportation), but only very small parts of them are currently in force. The rest of the standards are going to gradually take effect between 2014 and 2017, though, so companies should be reading up now on their responsibilities, and planning how they will comply.

It will be interesting to see what Dean Moran concludes about how the system so far has been working, and how those conclusions will affect the implementation of the existing standards or the development of new ones. I’ll try to check back in once she releases her report.

As a final note, I’ve actually just agreed to provide AODA training to a construction association in November. I did something similar for a different association about a year ago. Looking forward to it!

What would happen if an employer tried to ban religious symbols at work?

Imagine that an employer wanted to forbid its employees to wear religious symbols at work. Not all religious symbols, of course. Only “large” or “ostentatious” ones. What would happen?

The issue would fall under human rights legislation, which, in Ontario, is the Human Rights Code (the “Code”). The Code prohibits discrimination based on a number of protected characteristics, including religion (“creed”), in a number of social areas, including employment. Would the Code protect employees from this type of policy?

The Code would certainly come into play if the employer’s rule deliberately targeted employees based on their religion. But let’s assume that isn’t the case. Let’s assume the employer’s motivation is not anti-religion, but just to impose a reasonable dress code, to ensure that its staff have a professional appearance and portray the desired image to their customers. Under this dress code, all sorts of head coverings and jewelry are prohibited, not just religious ones. What would happen then?

Interference with a Sincere Religious Belief

The employer’s rule might still be discriminatory if it negatively affects somebody in a way that is linked to his or her religious beliefs. So the first question to ask is whether the individual employee has a sincere religious belief that he or she must wear the religious symbol. Many Christians, for example, wear a crucifix not because they believe their religion requires them to do so, but just because it is meaningful to them to express that part of their identity. The Code would probably not protect those people.

That said, it’s important to bear in mind that the question of a sincere religious belief is subjective. It doesn’t depend on what a  priest, rabbi or imam says the religion requires, but on what the individual believes.

The next question we would ask is whether the rule actually interferes with the person’s religious beliefs. The Ontario Divisional Court found in a 2011 case that an employer had not discriminated against a Muslim woman when it ordered her not to wear a particular hijab, which in the employer’s view looked unprofessional. The reason was that the employer had allowed her to wear other styles of hijab, and – the key point – those other hijabs were religiously acceptable to the employee. As a result, the employer’s rules still allowed the employee to practice her religion in a way that conformed with her sincere beliefs.

Similarly, an employer could probably require Jewish employees to wear small black yarmulkes (skullcaps) instead of more “ostentatious” ones – but only if the small black ones were acceptable according to the sincere religious beliefs of the individual employees.

The Duty to Accommodate

In our hypothetical, however, the employer’s dress code prohibits all sorts of head coverings and jewelry. Chances are that this type of rule would interfere with some employees’ religious beliefs.

Even so, that isn’t the end of the story. Even if the dress code is discriminatory, the employer can try to justify it as a “bona fide occupational requirement” – a rule that is truly required as an essential part of the employee’s job. The question to be asked is whether the employee’s religious beliefs can be accommodated without causing “undue hardship.” If so, the employer must modify the rule to accommodate the employee’s needs. If not, then the rule is allowed to stand.

What would constitute undue hardship when it comes to religious symbols? A couple of cases are illustrative. In one, an employer forbade a Sikh man from working because he was unable to wear a hard hat over his turban. A labour arbitrator upheld the employer’s decision, noting that the employer’s safety rule requiring hard hats was legitimate and necessary. In another case, a Sikh man was unable to wear a protective face mask, because it did not seal properly over the beard which his religion prevented him from shaving. Again, the employer was not required to excuse the employee from the safety rule, but it did have to try to find him a position that did not require the mask.

These cases show that interfering with worker safety is likely to be undue hardship. The Code will generally not excuse an employee from a workplace rule, even a discriminatory rule, where safety is at stake. But safety requirements are the only circumstances I have found in which an employer has successfully justified a rule that interferes with religious dress. While it is possible that other concerns could rise to the level of undue hardship, they would have to be just as compelling as physical safety. It is unlikely, for example, that a mere desire to make some customers feel more comfortable would make the cut.

Which is as it should be. The entire point of Canadian diversity and respect for human rights is that a person’s cherished beliefs, the things that make up his or her identity, should not be sacrificed merely because they may cause some discomfort.

Our hypothetical employer should keep that in mind.

And One More Thing

On the other hand, if wearing religious symbols in the workplace were contrary to law, an employer could almost certainly forbid its employees from doing so.

Suppose, for instance, that a provincial government were to pass a law forbidding certain employees from wearing religious symbols. Any employer covered by the law would probably be justified in enforcing that rule on its own employees. Even though the rule is discriminatory, it would cause undue hardship for the employer if it altered the rule and allowed religious symbols to be worn, because that would require the employer to break the law.

As a result, affected employees would not have much recourse under human rights legislation. They would have to challenge the underlying law itself, under the Canadian Charter of Rights and Freedoms.

But there’s no point even getting into that, because no provincial government would ever consider passing that kind of a law.

. . . I mean, they wouldn’t, right?

Right?

Disclaimer: This blog post is intended to provide readers an update on the law along with the author’s personal reflections. Nothing in this post or in the comments should be taken as legal advice or as creating a lawyer-client relationship. For more information or to inquire about obtaining legal advice, please see the Contact and Links section of this site.

The Alcohol Consensus

I wanted to kick this blog off with something that we’ll all be excited about. So today’s subject will be alcohol!

Drug and alcohol testing doesn’t normally make the news unless professional athletes are involved. As a result, we tend to think of testing as an issue of cheating versus fair play, as it is when we’re talking about Lance Armstrong and Alex Rodriguez. But what if we’re talking about an average employee in an industrial workplace? In that case, drug and alcohol testing engages a much more delicate conflict: safety versus privacy.

The Bottom Line

The Supreme Court of Canada has recently held that even in a dangerous workplace, an employer is not normally permitted to engage in random alcohol testing of employees. However, random testing may be permitted if there is a demonstrated problem with alcohol abuse in the workplace, which is significant enough to warrant overriding employees’ privacy interests in the circumstances, and cannot be addressed through less intrusive means.

The Supreme Court’s decision still allows employers to require alcohol testing for employees in safety-sensitive jobs if there are reasonable grounds to believe the employee is impaired, or if there is a safety incident, accident or near miss where alcohol testing may be necessary to determine the cause.

The decision does not deal with random drug testing, or with non-union workplaces, but the same principles most likely apply.

The Analysis

There’s a Clear, Overwhelming Consensus. We Just Can’t Agree on What It Is.

Here’s what I find amusing about the Supreme Court’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving”), released on June 14, 2013. The case turned on whether an arbitration board had properly applied earlier case law. Both the majority decision (6 judges) and the dissent (3 judges) agreed that there was a clear, overwhelming consensus in that earlier case law. The majority upheld the board’s decision because it followed the consensus. The dissent would have overturned the board’s decision because it failed to follow the consensus. So it seems that the Supreme Court judges couldn’t reach consensus on what the consensus was.

What’s interesting about all of the judges’ reasoning is that arbitration boards aren’t legally required to follow previous arbitration decisions, the way judges must follow the decisions of earlier judges. The Supreme Court is now saying that nonetheless, arbitration decisions can be overturned if they depart from the existing consensus without a reasonable justification for doing so. Which makes a lot of sense, because it’s good for everybody to be able to predict how a future arbitrator might act. But it does seem to make arbitration more formal and court-like, with all the good and bad that goes along with that.

You don’t want to hear about the increasing formalization of the labour arbitration system, though. You want to hear about alcohol! So let’s move on to . . .

Safety Versus Privacy: The Alcohol Consensus

There may not be a consensus on what the consensus is, but there at least seems to be a consensus that the consensus includes the following principles.

Drug and alcohol testing is a balancing act. Forcing an employee to give you a urine or saliva sample, or even a breath sample using a breathalyser, can be a serious violation of personal privacy. On the other hand, showing up drunk to a dangerous workplace – heavy machinery, toxic chemicals, risks of electrocution – can put both the employee and his or her colleagues at risk. As a result, the question in each case is whether the safety interest outweighs the privacy interest.

For employees in safety-sensitive jobs, an employer may require alcohol testing if there is reasonable cause to suspect the employee is impaired, or if a safety incident, accident or near miss has occurred and the employer needs to learn whether alcohol was a contributing factor. In these situations, the safety concern outweighs the privacy concern.

Random testing, on the other hand, is generally not allowed. However, it might be allowed where there is a history of alcohol problems in the workplace, and means other than random testing have not been successful to address them.

What Do We Mean by a History of Alcohol Problems?

This is where the consensus (or, at least, the consensus on what the consensus is) breaks down.

The dissenting judges in Irving say that random alcohol testing is permitted in a dangerous workplace if there is evidence of alcohol problems in the workplace. In Irving, there had been about 8 alcohol-related incidents in a 15-year period, which clearly constituted evidence of a problem. The arbitration board, however, refused to permit random testing because the employer had failed to provide evidence of a significant or serious problem. According to the dissent, the board imposed a higher standard on the employer than the law demanded.

The first time I read the decision, I agreed with the dissent. None of the case law talks about needing a “significant” or “serious” problem before random testing is allowed. In a highly dangerous workplace with some kind of alcohol problem, it doesn’t make sense that an employer would have to wait until a real injury happens before it can take action.

But on a reread, I have come to appreciate the approach of the majority. They return to the principle that underlies all of the various consensuses (consensi?): a balancing between safety and privacy. They are not actually saying that random alcohol testing can never be imposed in the absence of a “significant” or “serious” alcohol problem. What the majority are saying is that in the particular circumstances of the Irving case, the evidence about safety concerns just wasn’t compelling enough to override employee privacy rights.

What the Supreme Court of Canada is saying is that in every case, the safety benefits of testing must be balanced against the effects on employee privacy. And that’s hard to argue with.

Disclaimer: This blog post is intended to provide readers an update on the law along with the author’s personal reflections. Nothing in this post or in the comments should be taken as legal advice or as creating a lawyer-client relationship. For more information or to inquire about obtaining legal advice, please see the Contact and Links section of this site.