BENCHPRESS | Challenges to the Constitution, Canada Labour Code and an insurance policy - LawNow Magazine

BENCHPRESS | Challenges to the Constitution, Canada Labour Code and an insurance policy

Constitutional Challenge: Third parties can profit from sex work

R v Anwar, 2020 ONCJ 103

Hamad Anwar and Tiffany Harvey were charged for running an escort service in London, O.N. They employed several adult women, providing vacation time and benefits. Specifically, they were charged with offences under the following Criminal Code provisions:

  • 286.2(1) (receiving a material benefit from sexual services)
  • 286.3(1) (procuring a person to offer or provide sexual services)
  • 286.4 (advertising sexual services).

The accused challenged the constitutionality of these provisions. They claimed that:

the effect [of the legal regime created by the provisions] is, at a basic level, to deprive sex workers of those things that are natural, expected and encouraged in all sectors of the economy. As a result, sex workers, who are more likely in need of protection than more workers, are denied the benefits accorded to mainstream labour. (See para 3.)

The Ontario Court of Justice (Ontario’s lowest court) found that:

  • 286.2 and 286.3 violate s. 7 of the Charter (life, liberty and security of person)
  • 286.4 violates s. 2(b) of the Charter (freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication).

The Court determined that none of these violations could be saved under s. 1 of the Charter. The Court noted that the effect of s. 286.2 is to make sex work more dangerous “by discouraging all third parties other than the criminal element from becoming involved in the sex industry.” The Court also noted that s. 286.3 was arbitrary because it criminalized individuals offering administrative and safety services to sex workers that are provided to people in other industries. Finally, the Court concluded s. 286.4 fails to meet the minimal impairment requirement as it “imposes criminal liability on third-parties even if they are in non-exploitative commercial relationships with sex workers offering services at the same cost that they generally make available to the public.”

What’s next? Charges against the two accused are stayed. The Crown has not indicated whether they will appeal the decision. The decision was met with mixed reviews from the public.

Labour Code Challenge: Canada Post need not inspect mail routes

Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67

Canada Post is a federally-regulated employer. It must follow the provisions of the Canada Labour Code. Section 125(1)(z.12) requires that the work place committee or health and safety representative inspect every work place at least once per year.

A representative of the Canadian Union of Postal Workers, who also sat on the Local Joint Health and Safety Committee at the Burlington Depot in Ontario, filed a complaint with Human Resources and Skills Development Canada. “The complaint stated that the safety inspections should include letter carrier routes and locations where mail is delivered (‘points of call’), and not just the Burlington Depot building.” This complaint was significant because it could have national consequences. Canada Posted estimates that “letter carriers travel 72 million linear kilometers delivering mail to 8.7 million points of call.”

A Health and Safety Officer completed an investigation and concluded that Canada Post had not complied with s. 125(1)(z.12) of the Code. Canada Post appealed the Officer’s decision to the Occupational Health and Safety Tribunal Canada. The Appeals Officer at the Tribunal found that the inspection obligation only applied to the parts of the work place that the employer could control. He noted “Canada Post cannot alter nor fix the locations in the event of a hazard.” Therefore, Canada Post was not required to inspect letter carrier routes and points of call.

The Union applied to the Federal Court for judicial review of the Tribunal’s decision. The Federal Court dismissed the application for judicial review but the Federal Court of Appeal allowed the appeal and reinstated the original Health and Safety Officer’s decision. Canada Post appealed to the Supreme Court of Canada, which upheld the Appeal Officer’s decision. The Court found that the Appeals Officer’s decision was reasonable as it “followed from a clear line of reasoning.”

After all of that? Canada Post only needs to conduct safety inspections at its buildings, not on letter carrier routes or at points of call.

Life Insurance Challenge: No payout due to past terrorism

Mohammad v The Manufacturers Life Insurance Company, 2020 ONCA 57

The deceased applied for a life insurance policy on April 10, 1987. Purchasing life insurance was required to get a mortgage. The deceased answered all of the questions posed. None of the questions asked about the deceased’s past, and so the deceased did not reveal that he was a member of the Popular Front for the Liberation of Palestine (PFLP).

The PFLP is a terrorist entity. The deceased had been involved in storming an El Al civilian aircraft in 1968, moved to Lebanon shortly after, and then came to Canada in 1987 using an alias. Canadian immigration officials discovered his past, and he was deported to Lebanon in 2013. He died in 2015 from lung cancer.

The life insurance company refused to pay out the life insurance policy (worth $75,000) to the deceased’s wife because of the deceased’s past. The trial judge determined that the insurance company had not asked questions about the deceased’s immigration status or other past activities on the application form. This signaled this information was not material to assessing a candidate’s application for life insurance.

The Ontario Court of Appeal overturned the trial judge’s decision. The Court noted that it is a “principle of long standing that an applicant for insurance has an obligation to reveal to the insurer any information that is material to the application.” The Court concluded the “past actions of the deceased were material to the risk that he posed for the purpose of having his life insured.”

The result? The deceased’s wife doesn’t get the $75,000 life insurance payout.

Authors:

Jessica Steingard
Jessica Steingard
Jessica Steingard, BCom, JD, is a staff lawyer at the Centre for Public Legal Education Alberta.
 


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