Tuesday, October 16, 2012
Mediation issues in the Lemire Case: The Federal Court gets it all wrong
In the recent bizarre ruling of the Federal Court in the Marc Lemire case – where a Justice of the Federal Court upheld the completely discredited Section 13 of the Canadian “Human Rights” Act – The Justice also further claimed that the Tribunal’s clear and decisive ruling was incorrect with respect to mediation. Since the ruling, Richard Warman has taken to one of the websites he posts on to claim he was ‘extremely pleased’ with the courts finding that “repeated efforts were made by the Commission and Richard Warman to engage Marc Lemire in mediation or negotiation but these were always refused by Lemire because he would not accept a cease and desist order as part of any settlement. (para 60)”
Senior adjudicator Athanasios Hadjis of the Canadian Human Rights Tribunal looked at the mediation quite extensively in the Lemire case, and found that: “Mr. Lemire repeatedly asked formally through his legal counsel for an opportunity to mediate or conciliate a settlement to the complaint, to no avail…” [para 284] and further that “As I have pointed out several times in this decision, Mr. Lemire had not only “amended” his conduct by removing the impugned material, but sought conciliation and mediation as soon as he learned of the complaint against him. The process understood by the Supreme Court was not what Mr. Lemire experienced.” [para 289]
The Federal Court said that: “In this instance, the Member accepted Mr. Lemire’s contention that the complainant and the Commission declined to mediate or conciliate a settlement to the complaint. This is not borne out by the record of the Tribunal proceedings. Repeated efforts were made to engage Mr. Lemire in mediating or negotiating a settlement of the complaint. However, they were conditional on Lemire’s acceptance of a cease and desist order, which he refused to accept.” [para 60]
But who is correct, the Federal Court who reviewed the matter [in a ONE DAY hearing], or the Canadian Human Rights Tribunal who reviewed the Lemire case for close to four years, across close to 30 days of evidence and hearings?
Here is just one of the many documents I have on the mediation issue. I have plenty more, but these documents really underline how the entire process worked against me. It was a punitive process which in itself was the real punishment of the entire hearing.
On September 20, 2005, when the Marc Lemire case was referred to the Canadian Human Rights Tribunal for a hearing, one of the very first letters the Tribunal sent was to request mediation of the case. The Tribunal stated: “Before planning the actual inquiry, the Tribunal is offering mediation, on consent of all parties, in an attempt to achieve a settle of this matter. If the parties are of the view that mediation would be of assistance, the Tribunal Chairperson will designate a member of the Canadian human Rights Tribunal to meet with the parties to help in negotiations to resolve the complaints. As Counsel for the respondent [Marc Lemire] in these proceedings, our Mediation Procedures are enclosed for your review, to assist you in making this decision.”
A mere three days later, Marc Lemire’s lawyer – Barbara Kulaszka – immediately responded by saying “Mr. Lemire agrees to mediation in the above-noted complaints by Mr. Warman in English. I propose that the mediation take place in the cities of Bellville, Kingston and Toronto, listed in order of preference.”
Unlike the questionable ruling by the Federal Court, or any other claims, there was NO “precondition” of anything. Marc Lemire agreed to mediation before the Canadian Human Rights Tribunal, immediately and unreserved. The quote above is the entire letter from Marc Lemire’s courageous lawyer, Barbara Kulaszaka. There was no precondition, or any refusal to accept a “cease and desist” order.
And who turned down the mediation before the Canadian Human Rights Tribunal?
On September 30, 2005, Gregory Smith, Registrar of the Canadian Human Rights Tribunal sent us a letter, wherein he stated: “In response to our letter dated September 20, 2005, inquiring whether the parties were interested in having the above-noted case mediation, I am now writing to confirm that mediation has been declined by the Complainant [Richard Warman]. Therefore, this case will now proceed to hearing.”
Here is the entire letter, in case you think I might have left something out. Just click on each image to enlarge it:
The Federal Court was totally wrong. I did not put preconditions on the mediation, and for those that wish to praise the Federal Court for this incorrect ruling, should really review the documents posted in this email, and think again about who turned down mediation from day one.
Can you say … “Maximum Disruption”?