Even though she has worked all her life, Dawn Doyle now visits the food bank twice a month.

She says 2015 was a devastating year for her.

“We have nothing,” she said on her sister’s phone. Her own phone has since been disconnected after failing to pay the bills.

Doyle was one of six employees for Harmony House for Girls, a home for troubled youth in Hilden, NS.

She worked there for ten years before it shut down in 2014.

But she isn’t sad to see it go.

During her time at Harmony House, Doyle and her five coworkers were members of the Canadian Union of Public Employees, local 4782. Harmony House and its owner, Rorie Digault, did not pay retroactive wages and RRSP contributions to the employees from 2009 to 2011.

The workers filed grievances in 2013 and a hearing was held in July 2015.

After an agonizing wait, Doyle and her co-workers won the decision and were awarded over $212,000 in back pay, severance packages, RRSP contributions, and aggravated damages while the union were awarded their dues.

This pie chart below illustrates a breakdown of the claims made by the six employees and the union.

Still, winning a decision and getting paid are two different things, according to lawyer Derek Brett who was not involved in the case.

“The process doesn’t always work out,” he said.

One year later, Doyle is living proof of that.

‘This is a matter between the employees…and their employer,” said Department of Community Services

The provincial government funded Harmony House while Doyle was still an employee.

From 2009 to 2011, the government had even given Harmony House a surplus of funds in order to compensate for the retroactive pay to the employees.

But when the province took a closer look into the home’s finances only to find malfeasance, it immediately stopped funding in 2014.

Click the timeline to see how the case unfolded throughout the years, from suspicions in 2009 to the present day. Since then, the Department of Community Services, which oversaw Harmony House, stated that the government has no role in this dispute anymore.

“This is a matter between the employees, the union, and their employer, which is Harmony House, not the Department of Community Services,” said media relations advisor for Department of Community Services Heather Fairbairn in an email statement.

In the 2015 decision, arbitrator George Filliter recommended the government investigate  Harmony House’s finances.

However, this has not happened yet.

“No one (from the government) has spoken to us about the wrongdoing that has been done,” said union representative Grant Dart.

Doyle equally blames the government over what has happened to her over the past year.

“I’m down-hearted because no one is stepping forward,” she said.

This is why, despite her financial troubles, she refuses to take welfare. The government already owes her money, so there is no sense in asking for some, she said.

The next step

More than anything, Doyle would like to see a lawyer so that the province can hold her former employer accountable.

“We would like to see the government prosecute (Digault).” Contact information for Digault could not be found for this story.

Instead of battling this out in court, Brett believes that it may be more effective to use the ballot.  

“If the (government) is not being responsive, then you go to the elected,” he said.

Dart says that the union has tried to pressure MLAs and MPs to do something.

Right now, the only option is just to wait.

Hear more about what Dart has to say about the future of this case by clicking on this Soundcloud link. “It’s our hope that we try to make some right in this process,” he said.

Doyle is tired of people telling her how wrong this whole situation was.

She wants action, but the spectre of her debts and the unfairness of their cause still hang over her day after day.

“There is no way I’m ever going to recover from this.”

Read the decision made by the arbitrator granting the award to the employees and union. 

It’s not so much the timelines behind you that matter as the timelines in front of you.

According to court documents, Christopher Garner says he heard this after being turned down for higher positions at the Bank of Nova Scotia because of his age.

Garner worked as a branch manager at the bank for 35 years before he took the company to court with allegations of age discrimination and constructive dismissal.

Garner claims in a 2010 meeting, Peter Bessey, a senior vice president with the bank told him the positions were meant for younger applicants.

After filing a lawsuit in 2011, Garner was let go from the bank.

The judge concluded Garner had not been discriminated against but was wrongfully dismissed.

But Garner feels differently.

“35 years, 5 months, and 23 days before I was FIRED for standing up to Scotiabank on an age discrimination issue,” Garner wrote on his Facebook timeline.

See details of the money awarded to Garner below

‘Ageism exists in too many places in the workplace’

Christopher’s feelings aren’t unique.

Six in ten Canadian seniors say they have been treated unfairly or differently because of their age and employers were listed as one of the top sources of age discrimination, according to The Revera Report on Ageism.

“We believe that ageism exists in too many places in the workplace,” says Ian MacDonald, chairperson of the Canadian Association of Retired Persons.

Although Canada’s mandatory age of retirement was abolished in 2012, Ian says seniors still face a myth they aren’t as capable as younger workers and can be seen as a cost drain

“They look at an older worker who is typically going to be earning more because of their seniority and may be costing more in terms of health benefits, they see that as a liability,” says Ian.

Ian says this may lead to a company ushering out older employees.

“They’ll restructure, change their [job] description in order to make it impossible or extremely difficult for the employee to meet the objectives,” Ian says.

Kevin MacDonald, a trial lawyer who handled Christopher’s case against the Bank of Nova Scotia, has worked a number of cases regarding dismissal based on age.

Kevin says older employees may be terminated because of their higher salaries but the blame is put on their abilities.

Kevin says employers often make a calculated decision when cutting seniors.

“They know it is very difficult to effectively challenge a decision to terminate someone because of the cost involved,” Kevin says.

Value of working seniors

Ian believes older workers are more reliable and don’t have issues such as child care to worry about.

With a few adjustments, Ian says seniors can remain in the workplace.

“If a person has to be on their feet all day then put some cushioned carpet or floor under them,” Ian says. “They can be very inexpensive things that will reengage an aging workforce and actually increase productivity.”

But there are times seniors might not be up for the job, says Erin Cain, a lawyer with the Merrick Jamieson Sterns Washington & Mahody firm in Halifax.

Cain says bona fide occupational qualifications are qualities or attributes employers are allowed to consider when making a decision to terminate an employee.

“Think about something like an airline pilot or a fire fighter,” Cain says. “There are areas of employment where they do take into consideration the physical aspects of the job.”’

But Ian says age shouldn’t be a factor at work.

“Age should never be the basis of whether someone should be let go from a job, the same way as race or gender shouldn’t be,” says Ian. “Everyone should be evaluated on what they do.”

The disclosure of name, position and the exact salary of public employees is not an unreasonable invasion of privacy, says the Newfoundland Privacy Commissioner.

An access to information request was sent to Eastern Health, asking for employment details of all its employees taking home more than $100,000 in yearly earnings. When the notified employees objected to the release of their information, the case went before provincial Privacy Commissioner Ed Ring.

The health workers’ reasons for objecting included fear of identity theft, concerns that the disclosure of their income could harm their therapeutic relationship with patients, as well as “concerns for family members who could become subject to ridicule and scorn and the target of thieves.”

In a written statement, Eastern Health officials’ said the organization was obligated to follow legislation, but “protecting the privacy and confidentiality of our patients, clients and residents, as well as our employees and physicians, is paramount.”

In reaching his recommendation, the Commissioner drew on previous cases from Prince Edward Island, Nova Scotia, as well as Ontario. Ultimately, his decision took its cue from the province’s own Access to Information and Protection of Privacy Act, which finds the release of private information to not be unreasonable when “the information is about a third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff.”

Privacy versus transparency

Disclosing the salaries of public employees remains of a topic of national divide. At the federal level, government bodies are only forced to disclose salary ranges, but some provinces like Newfoundland and Labrador go further, and mandate that exact earnings be disclosed, including sources of income outside of salary. 

Opinions on whether this extra level of financial scrutiny is fair for public employees differ.

“The more sunshine put on them, the better,” says Ken Rubin, researcher and freedom of information advocate.

So-called  “Sunshine laws” decree that governing bodies disclose salaries of public employees earning more than $100,000. A threshold Rubin feels should be done away with.  

“In essence, I feel everybody’s salary should be released. I don’t buy into ‘Oh, it’s just for the few higher ones. If you create a system, it’s for everybody,” says Rubin.

However, others feel a better balance between transparency and employee privacy can be struck.

“Doing salary range, I think, is a tried-and-tested method of doing it, and it seems to keep everybody happy,” says Kris Klein, a legal expert dealing with privacy law and access to information.  

“I just think everybody’s entitled to a little bit of privacy when it comes to their salary,” says Klein. “It’s definitely a policy choice about being transparent, but at the same time, you’re really telling your public servants they don’t have any privacy in the amount of money that they make.”

Provinces divided

The choice of whether to disclose employees’ income as a range instead of the actual amount differs among provinces.

In 2014, the Office of the Newfoundland and Labrador Privacy Commissioner reviewed the Act following the passing of Bill C-29 in Ottawa. Here, the Act described disclosable income in terms of “salary range”. After review, it was the suggestion of the Commissioner that the wording be changed back to  “remuneration” as to include other sources of income for employees.

Policy as to the specificity of disclosure varies from province to province. Below is a map detailing what each province prefers when it comes to “remuneration” versus “salary range”.

Pictou Landing First Nation held a community meeting on February 16, 2016 to prepare an impact statement.

During the meeting the community discussed the effects of Northern Pulp’s 2014 pipeline spill on the area.

On June 10, 2014, Northern Pulp’s pipeline ruptured, releasing 47 million litres of untreated effluent into the surrounding area, including the East River and Pictou Harbour.

Effluent is classified by the government, under the Pulp and Paper Effluent Regulations, as mill waste water. It can include all water by-products from processing.

Northern Pulp’s pipeline carried 90 million litres of untreated effluent from the company’s mill at Abercrombie Point to a treatment facility at Boat Harbour, in Pictou Landing.

 Northern Pulp’s pipeline

Source: Google Maps

Pipeline spill

Timeline: Northern Pulp’s pipeline spill

Source: Timeline JS

Pictou Landing First Nation, Chief Andrea Paul, says, “this [pipeline spill] was not a victimless offence.”

Pictou Landing First Nation

In the impact statement to the court, Chief Paul said the spill triggered “anger and fear” based on decades of “environmental degradation of our territory.”

During the community meeting, Chief Paul says people felt “helpless,” like they had “let the environment down.

She says it began with the construction of the pipeline in 1967.

“The pipeline was routed across lands over which our First Nation has asserted a compelling claim for Aboriginal title,” says Chief Paul. “This land was never the subject of a Crown grant but somehow became the subject of private deeds exchanged between settlers in the area.”

In response to the spill the Pictou Landing First Nation organized a blockade, which led to a two week closure of the mill.

Chief Paul says, the brief closure brought the community a sense of “relief.”

Investigation

An investigation into the leak found that the land-based portion of the 3.6 kilometre-length pipeline had not been internally inspected since 2008, “despite there having been several leaks that had required repair or replacement of sections of the pipeline in previous years.”

According to court documents, there was a 14 inch “oval hole” in the pipeline where the “discharge occurred.” It also states that there were visible  “cracks, leaks and extensive erosion” at the “rupture site.”

Representatives from Environment and Climate Change Canada, Fisheries and Oceans Canada, Natural Resources Canada, and the Nova Scotia Department of Natural Resources were all unavailable to comment on government regulations around pipeline inspection and maintenance.

Clean up

Between June 11 to 21, 2014 the company brought in pumper trucks to clean up the effluent. The effort removed 2.2 million litres of the 47 million litres of the spilled effluent.

Cloutier says, “the entire line has now been inspected as a preventative measure to minimize the possibility of such a leak occurring again.”

She says in June 2015, the mill was shut down for “proactive line repairs as part of ongoing preventative measures.”

Ruling

In May, a judge in Nova Scotia fined Northern Pulp $225,000 in damages for the leak. The sentence instructed the fine to be distributed equally to the Mi’Kmaw Conservation Group, Pictou County Rivers Association, Pictou Landing First Nation.

New Industry Standards

Northern Pulp mill has reduced the daily amount of waste water transferred from the mill to a treatment facility by 20 per cent, based on new industry standards.

The company’s communications director, Kathy Cloutier says, “currently the pipeline carries closer to 70 million litres of effluent a day.”

She says the reduction in waste is the result of “water reduction efforts and projects that are part of Northern Pulp’s long term operating plan.”

The doctrine of judicial immunity is a principle wedded to Canada’s court system. It protects federally-appointed judges from scrutiny while immunizing them from civil liability from both plaintiffs and defendants who believe their interests were harmed by judges.

The principle of judicial immunity has been upheld by Canada’s Supreme Court in at least two decisions, the most recent being Mackeigan v. Hickman, [1989]. Black’s Law Dictionary defines judicial immunity as [the] term that describes the immunity that a judge has from civil liability for actions performed as a judge.

The rationale for judicial immunity is two-fold: it is said to be in the public interest that judges can exercise their duties and adjudicate matters before them free of external coercion or pressure; and that such duties are executed without fear of reprisals or litigation by parties who feel wronged by their decisions.

The principle of immunity does not immunize judges from inappropriate conduct or comments they make within their scope of duties. The Canadian Judicial Council is a body that accepts complaints from the public who believe a judge has behaved inappropriately within their adjudicative capacity. It cannot, however accept complaints about the decision-making role ambit of a judge, nor any errors in law he or she made that was later reversed by an appeals court.

Lyle Howe is a Halifax lawyer whose odyssey through the justice system began in 2011. A night of socializing led to a sexual assault charge that wound its way through the courts until the charge was dropped by the Crown in Feb. 2016.

The defendant sat through a preliminary hearing in 2012 followed by a trial by jury in May 2014. After a month-long trial he was convicted of sexual assault. It wasn’t until Sept. 2015 that an appeals court decision by three judges set aside that conviction.

The three-judge appeals panel found that the presiding judge at trial made errors in law in his instructions to the jury. In an interview below, the defendant talks about the aftermath of that conviction and reflects on how the outcome may have been different had the judge not erred in both his decision-making and instructions.

An excerpt from R v Howe, 2015 NSCA 84 annotated in DocumentCloud
(click inside the annotation to see the entire document and other annotations)

Source: http://www.canlii.org/en/index.html

An excerpt from R v Howe, 2015 NSCA 84 annotated in DocumentCloud
(click inside the annotation to see the entire document and other annotations)

Source: http://www.canlii.org/en/index.html

An excerpt from R v Howe, 2015 NSCA 84 annotated in DocumentCloud
(click inside the annotation to see the entire document and other annotations)

Source: http://www.canlii.org/en/index.html

Howe realizes that answers will likely never be forthcoming to reconcile the trial judge’s decision-making. He is absolved from explaining errors – as are all members of the judiciary – by the doctrine of judicial immunity.

Interview with defendant Howe

In cases where a defendant is adversely affected by a judge’s errors in decision-making, the legal system offers no remedy other than the option of appeal. It does not recognize the proposition that the public interest may not be served if defendants experience adverse impact as a result of judicial errors.

As explained by legal scholar Adam Dodek, there is no mechanism in place to track the errors a particular judge makes during his or her tenure in the courts. It is possible that a judge could make errors in law in a series of cases over time, but face no consequences because the principle of judicial immunity is virtually invincible.

Professor Dodek, a legal expert at the University of Ottawa, explains that the doctrine of judicial immunity has been affirmed by the Supreme Court, and has not been successfully challenged in the lower courts.

In particular, Dodek rejects the theory that a defendant could be stigmatized by the consequences of a judicial error of law resulting in conviction.

Interview with legal scholar Adam Dodek of the University of Ottawa

Until the doctrine of judicial immunity is overturned, defendants have no civil recourse to judicial error other than waiting out what can be a lengthy appeals process, while being told that any adverse consequences take a back seat to the public interest.