By Howard Levitt 

Opinion: Even the appearance of bias could throw decisions into legal limbo

Birju Dattani was a relatively unknown bureaucrat until two weeks ago. A young lawyer who had occupied only middling positions in human rights commissions and, most recently, at Centennial College, he was suddenly elevated to chair of the Canadian Human Rights Commission, one of the three most prominent human rights positions in this country.

But, according to Justice Minister Arif Virani, who appointed him, in whatever interview and background check, he conducted, he did not learn about Dattani’s past, a past which has created a national uproar.

That background was delineated in last Saturday’s column and included sharing a platform in England with a member of a banned Islamist fundamentalist organization opposed to the existence of the state of Israel and posting links on social media to articles comparing Israelis to Nazis and Palestinians to Jews incarcerated in the Warsaw Ghetto.

Dattani has denied holding such views. What came out even later (so not mentioned in my column) was that he had also written a paper taking the position that terror is a rational strategy with high success rates rather than decrying it as a human rights atrocity and act of political violence.

When the revelations of his many involvements came to light, Jewish organizations and others demanded that his appointment be rescinded.

It looked like that was about to occur, but then the usual voices from the left chirped in, claiming that he is the victim of a smear campaign and is only being attacked because he is a Muslim.

What Dattani’s credulous supporters fail to comprehend is that, as head of the CHRC, even the appearance of bias or a reasonable apprehension of bias by someone appearing before him is cause for instant disqualification. He is not being appointed to an egg marketing board or wheat board but to lead the very administration of human rights in this country. His background on such matters must be unimpeachable. It is very far from that.

If he is not removed, in light of his previous radical statements and conduct, litigants who are Jewish or anyone accused of Islamophobia could challenge any ruling in which he is involved, clogging up our court system with what, in my view, would be winning, meritorious reviews.

What these critics also miss is that a commissioner with such a record would bring the entire CHRC into disrepute, hardly in the interests of Canadians.

Jordan Peterson might say, sardonically: “Bring it on and let the CHRC deservedly collapse under the weight of its own irony and political correctness.” And this scandal, on top of allegations that the CHRC has discriminated against its black employees, indeed might be its last.

But surely that cannot have been Virani’s goal in appointing Dattani.

Last week, I discussed the law respecting both executives who do not disclose, even if not asked, backgrounds that would be material to their employment and respecting any employee who told a material lie during a job interview. Both are cause for discharge. Did Dattani misrepresent his background, choose not to disclose it, or, as at least one recent report from CBC has suggested, acknowledge at least some but not all of his controversial postings but was hired anyway?

Virani is now conducting an investigation. Surely an investigation into his own hiring practice here is what is most in order.

But respecting Dattani, no investigation is required, despite the constant refrain from the investigation lobby that all forms of misconduct must be probed before an employer can terminate for cause. Investigations are not so legally required and, for all of the reasons above, someone with Dattani’s history should never be heading our federal human rights commission and that appointment must end now.

That leads to the question of his status at Centennial College. As of Thursday, its phone system shows him as employed and his departure has not been announced (he was not due to start at the CHRC for several weeks).

Let us assume any company suddenly learns that its executive has committed past misconduct that would have prevented it from ever hiring him.

Does it have any recourse? Generally, that can be cause for discharge without severance.

The leading case on this topic is that of Philip Kelly, fired because he downloaded child porn in his home and was criminally charged (but never at that point convicted). The court found the firing was justifiable because Linamar’s association with an employee who committed such acts was damaging to its reputation.

One difference might be that Dattani’s alleged conduct occurred years ago, not during his employment with Centennial.

The school, however, would still potentially have cause if he mislead his interviewers or failed to disclose behaviours that compromised his ability to perform his functions as its human rights director.

What is entirely clear is that his past associations, writings, and conduct should disqualify him for any role involving human rights, let alone as the overall leader of the federal government’s human rights commission.