Deference

Wrote about decision by the Human Rights Tribunal of Ontario: Masetich v. Value Village Stores, 2016 HRTO 1229. The decision involves a difference in interpretation as to the nature of accommodation an employer must give in relation to caregiving responsibilities. The Federal Court of Appeal had said, in relation to comparable federal legislation, that the responsibility must be a legal one, and that the employee had an obligation to demonstrate that he or she could not find suitable alternative caregiving arrangements. This meant that persons caring for elderly parents, voluntarily and where third party care was not being considered, could not require any accommodation from an employer. The Ontario Human Rights Tribunal disagreed.

Originally was quite bothered by the decision, given that the issues had already been judicially addressed. Felt that respect should be accorded to the views of an independent judiciary, as opposed to acting contrary, as part of the executive function of government, which is the position of most administrative tribunals. Then thought further, and realized that it would be quite reasonable for any provincial government or provincial tribunal, not bound by a federal precedent, to interpret comparable provincial legislation differently.

When it comes to interpreting legislation, a definitive interpretation is not necessarily limited to one made by independent judges. In the Masetich case, any party seeking judicial review of the decision would be met with an attitude of judicial deference to the legislative interpretation adopted by the Tribunal. When there are equally reasonable interpretations, or so perceived, the Tribunal interpretation will generally govern. Basic idea being that the government (including a Tribunal, as part of the government executive), in interpreting its own legislation, including interpretations leading to enforcement or liability consequences, is to be held only to a standard of reasonableness, even if a court might interpret the legislation otherwise, as occurred federally.

The end result is that, at least in Ontario, there is now a legal duty of employers to accommodate employees in relation to voluntary caregiving by employees of elderly parents. No further judicial determination required, and no application for judicial review likely to succeed in any event. Even though an administrative tribunal has no formal jurisdiction to set legal precedents, the reasonableness of an executive interpretation results in a legal precedent in substance.

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About brucelarochelle

http://www.lmslawyers.com/bruce-la-rochelle
This entry was posted in Administrative Law, Challenges, Family. Bookmark the permalink.

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