Justice Committee on Nov. 18th, 2009

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you, Ms. Chotalia, for your presence here this afternoon and for your very impressive résumé. It's always good to see a fellow Edmontonian here in Ottawa.

Following up on my friend Mr. Murphy's questions, I do have some questions regarding the 2003 decision of Warman against Kyburz. You have it in your résumé as Kyberg but in the actual decision I think it's Kyburz, but that's not too germane to my question.

You answered in response to Mr. Murphy's question that there was unanimous decision of the tribunal, and you were a part of that adjudicative body. And I understand that Mr. Warman received compensatory damages from the adjudicatory body in the amount of $15,000. I'm really curious and concerned about that, especially in light of the ruling in paragraph 90 where it states, “Mr. Warman testified that he was not Jewish. In our view, the fact that Mr. Warman was not himself Jewish does not detract in any way from the viciousness of the attacks launched” by Mr. Kyburz.

As you may or may not know, I spend the majority of my legal career in insurance and compensatory and personal injury law, and I'm always concerned about the difference between complainants and actual victims. And in this case and from my reading of it, I didn't see that Mr. Warman was a victim. He testified that he wasn't Jewish. He in fact was an employee, as you undoubtedly know, of the Human Rights Commission at the time that this complaint was filed and adjudicated. I just am really curious to hear you comment, if you recollect, on why the tribunal was predisposed to award him $15,000, in light of the fact that he's not Jewish and therefore logically cannot be offended by the very, very offensive postings of Mr. Kyburz on his website.

[Shirish P. Chotalia]

I can again only say that the decision speaks for itself, so it would be improper for me to really voice my opinion on it. It does say exactly what it says. I can advise you that I'm aware of the issues with respect to the punitive versus compensatory issues of the legislation. And again, I think I can't say anything further. No judicial review is taken, it says what it does, and I think all parliamentarians can do.... I think the ball is right in your court. You need to address this issue as a House, as the democratic voice of Canadians, in terms of what you would like to see done with section 13, and we can only apply the law as you've written it.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I agree that it is incumbent upon parliamentarians to deal with the very issues raised in this decision and others.

One other case that you were involved in, not as an adjudicator but as a litigator, caught my attention, and that's the highly publicized decision, certainly in Alberta, and I suspect elsewhere, of Vriend v. Alberta and the Alberta Human Rights Commission. You no doubt know the case I'm talking about.

[Shirish P. Chotalia]

Yes, I do.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

From your résumé, I understand you appeared at the Supreme Court on behalf of an intervenor. You were counsel for the Alberta Civil Liberties Association. Is that correct?

[Shirish P. Chotalia]

That's correct.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

For the benefit of my colleagues, you probably recall that Vriend was a decision where the Alberta legislature was basically ordered by the Supreme Court of Canada to include sexual orientation in its human rights legislation, although it had up until that point decided not to.

I was just curious. I'm assuming the Alberta Civil Liberties Association was supportive of the appellant, Mr. Vriend, but I wasn't able to read your factum, so I don't know. Is my assumption correct?

[Shirish P. Chotalia]

Well, I was certainly counsel for the Alberta Civil Liberties Association. The factum that we filed with the Supreme Court of Canada was to indicate that the case of Vriend was against the government of the province of Alberta at that time, to say that the Alberta Human Rights Act did not have the words “sexual orientation” as a ground in that act. So if Mr. Vriend had a complaint of discrimination, he was unable to access the Alberta Human Rights Commission. So then the Supreme Court of Canada read the words “sexual orientation” into the act. Of course, in the last version of the Alberta Human Rights Act, which is now the Alberta Citizenship and Multiculturalism Act, the words “sexual orientation” appear there, but until then it was not there.

Now, the Vriend case does not deal with whether Vriend was discriminated against by King's College. Vriend worked in the computer laboratory for King's College and was asked what his sexual orientation was. He told them and then he was dismissed.

Certainly that was the role I played as counsel for the Alberta Civil Liberties Association, to submit a brief to say that the legislation was under-inclusive.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Under-inclusive. Thank you.

My last question, if I have time, is this. I know from your résumé you served as a part-time commissioner until 2003, and then you presumably went back to private practice.

[Shirish P. Chotalia]

Yes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I wonder if you can walk me through the chronology as to why you left in 2003.

[Shirish P. Chotalia]

Okay, sure.

A lot of my part-time work, whether it be as a member of the tribunal or the commission or as an instructor at the University of Alberta, has always been part-time while I've been carrying on my full-time practice. Yes, I wasn't reappointed. There was a three-year term, and we did that work, and then the appointment ended and I wasn't reappointed.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you. And thank you very much for your impressive résumé and your attendance.

[Shirish P. Chotalia]

Thank you.

[The Chair, Conservative, Ed Fast]

Well, thank you to all of you. It is customary, although it's not required by committee, to opine as to whether the qualifications and competence of the candidate have been determined.

Is it moved by Mr. Murphy?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I would move that the candidate be fully endorsed by this committee for the post that she has been suggested for.

(Motion agreed to)

[The Chair, Conservative, Ed Fast]

Thank you.

[Shirish P. Chotalia]

Thank you so much. It's been a pleasure to be here.

[The Chair, Conservative, Ed Fast]

You're very welcome.

We'll suspend for a couple of minutes. We have some committee business, so I'll give you two minutes and we'll reconvene in camera.

[Proceedings continue in camera]