By Ernest J. Guiste
It was just over 14 years ago that I represented one of eight Roman Catholic obstetrical nurses in a case that reaffirmed to me why it is that I decided to become a lawyer. Mr. Peter Jervis, a very able lawyer, who was at the time practicing with Lerners, acted for the other seven and Ms. Naomi Overend represented the Ontario Human Rights Commission. I will never forget the day Mrs. Aileen George sought my counsel in her struggle to obtain religious accommodation from performing pregnancy terminations in her work as a nurse in Markham Stouffville’s Birthing Unit. I was a new lawyer – having been called to the Ontario Bar some two or three years prior to our meeting. As a lawyer it is one thing to be called upon to represent a client in a routine legal matter but a very honourable calling when called upon to seek a legal remedy for such a fundamental right as religious accommodation. I was fired up! However, never did I foresee the resistance that I experienced in trying to get Markham Stouffville Hospital to respect my client’s right to religious accommodation from performing pregnancy terminations.
My client, Mrs. Aileen George, was a highly skilled obstetrical nurse working at the Scarborough Grace Hospital where they did not perform pregnancy terminations. Markham Stouffville Hospital was a new hospital with a great need for experienced obstetrical nurses. Accordingly, they actively recruited Mrs. George’s immediate supervisor and had her bring a number of her subordinates with her. Mrs. George maintained that she was recruited on an express representation that she would not be required to engage in pregnancy terminations. It was my understanding that this representation was made to all the nurses and their supervisor. I confirmed this fact with a statement from the supervisor – who at the time of the litigation was retired. As soon as she retired, Markham Stouffville Hospital refused to accommodate my client and the other Roman Catholic nurses from pregnancy terminations. All of the nurses brought human rights complaints to the OHRC alleging discrimination and harassment on the basis of religion. However, only my client – sued civilly in addition to bringing a human rights complaint.
Looking back on the case, the civil action which I brought on behalf of Mrs. George was a crucial tactical move in her case. The claim was based on the hospital’s negligent misrepresentation to Mrs. George that in giving up her job at Scarborough Grace she would receive greater compensation and not have to involve herself with pregnancy terminations. Through this action I was able to obtain documentary production from both the hospital and the former supervisor despite the determined efforts of the hospital’s counsel Mr. Joshua Liswood – then of Sawyers Liswood. I will never forget the day I saved his junior, Ms. Frelick, from near death or very serious bodily injury. Mr. Liswood sent her to resist my motion seeking production of relevant documents from the hospital with respect to my client’s recruitment. The motion was before the late Master Peppiatt – a very firm but fair judicial officer who was known to challenge counsel on the soundness of their positions. Master Peppiatt began to question Mr. Frelick on her position in order to demonstrate to her that her position was not tenable. Ms. Frelick turned pale and fainted. She would have slammed her head on the counsel table had I not caught her. Master Peppiatt granted my motion and awarded close to $2,000 costs against Markham Stouffville Hospital.
The cases went on for years. Markham Stouffville Hospital appeared determined to “stick to their guns” notwithstanding what appeared to me and other observers to be an indefensible position. The cases did not settle until the human rights cases were scheduled for hearing before a Board of Inquiry. Once at the Board of Inquiry the parties engaged in some talks. The parties settled. Poor Mrs. George was offered reinstatement but she refused it. She could not return after all the hurt. Mr. Liswood was a different person at the Board of Inquiry. He even offered me an invitation to watch the Jays at the Sky Dome with him. To this very day I often wonder whether Markham Stouffville Hospital was touched by the spirit or whether it was their strategy to break the spirit of the Roman Catholic nurses. Markham Stouffville Hospital passed a religious exemption policy for pregnancy terminations that included not only the Catholic nurses but all medical staff. This is just one in a series of cases in my legal career that have taught me that when your purpose is just you must never be intimidated by the social status or “deep pockets“ of your adversary.
Note: Rosie Di Manno of the Toronto Star wrote a very informative piece on Mrs. George’s case at the time of the events referenced above. The policy – www.consciencelaws.org/background/policy/institutions-002.aspx.