Madam Justice Bertha Wilson, the first woman on the Supreme Court of Canada died yesterday. Wilson, well known for her dissenting opinions, was appointed to the Supreme Court just prior to the advent of the Charter of Rights and Freedoms; accordingly, she had a significant voice in shaping the law and articulating the values the Charter protects. Her views in employment cases were generally in favour of the employees.
One of my favourite opinions of Wilson's is that in Bhadauria v. Seneca College, a case Wilson decided while still in the Ontario Court of Appeal and which was overturned by the Supremes. In that case Dr. Bhadauria had been teaching at Seneca College for a number of years. Ontario colleges manage a substantial amount of teaching responsibilities through, part time, sessional, limited term contract teachers. These people are hired one term at a time and are paid an hourly rate for classroom time, but must manage all their other duties, i.e. student contact and marking, on their own. The sessionals have no, or limited benefits, pension, and union protection. In contrast to the permanent full time faculty who are unionized with full salary, benefits and pension, the sessional is a very poor second cousin. Presumably, it is the goal of many sessionals to obtain permanent employment. Dr. Pushpa Bhaduria had such hopes which, alas, went unfulfilled for many years. Believing that the basis for her exclusion from permanent employment was her race, Dr. Bhaduria attempted to sue for the tort of discrimination.
The court held that there was no tort of discrimination and that any right that Bhadauria had must be pursued under the Ontario Human Rights Code. This, as many people who have tried, will know, is also a dim second cousin to suing in court for a tort. Damages are limited to a maximum of $10,000.00; there is no power to award costs to a successful applicant; case backlogs were substantially slower than the courts. Wilson held that the right to sue for discrimination should and did exist in the common law. Her view, perhaps shaped by the fact that she preferred the law over administrative convenience, was that individuals shouldn't be denied access to the courts.
The opinion of the Supreme court and the philosophy of restricting litigation, unfortunately has continued to carry the day in most similar cases where access to the courts are denied to those with unions, or with complaints that might be heard in the context of administrative tribunals.
Retirement age on the court is 75 -- Wilson left at age 67. Yet, she had written the dissent in the Harrison v. UBC case in which she stated that mandatory retirement was unconstitutional.