ARMO Magazine
Emojis are increasingly becoming part of our daily communications. Although language, and by extension forensic linguistics, have been aiding the uncovering of crimes since late 1960s, emojis have particularly entered the realm of legal discovery in recent years.
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The issue of “jurisdiction” is an important decision to make prior to any court filings. It is also important to understand “the doctrine of res judicata” which states that once a legal matter is decided, the same issue may not be relitigated between the same parties.
However, there are complex legal matters in which the Small Claims Court may have jurisdiction over some legal issues in the case, while the Human Rights Tribunal may have jurisdiction over other aspects of the legal situation.
For example, an employee who was discriminated against and was wrongfully dismissed may have a claim for damages due to the wrongful dismissal in the Small Claims Court and at the same time may have human rights complaints within the jurisdiction of the Human Rights Tribunal.
Moreover, the remedies that are awarded by the Small Claims Court may be different from those of the Human Rights Tribunal. For example, the Human Rights Tribunal does not award severance pay even if it concludes that the dismissal was due to discrimination.
On the other hand, the Small Claims Court only awards monetarily damages and return of property and does not award equitable remedies (request for relief that does not include money or property).
Eventually when a complaint is filed with the Human Rights Tribunal while there is an ongoing proceeding in the Small Claims Court, the adjudicator during the preliminary hearing decides whether the human rights complaint should be deferred until the Small Claims Court proceeding is concluded.
Similarly, if a claim is commenced in the Human Rights Tribunal and later in the Small Claims Court, the proceedings in the Small Claims Court will be adjourned until after a decision is made by the Human Rights Tribunal.
A claimant may not be compensated twice for the same damages. However, a plaintiff in the Small Claims Court proceeding may be awarded damages based on one legal issue (e.g., wrongful dismissal), and the same applicant in the Human Rights Tribunal may be awarded compensation based on a different legal issue (e.g., discrimination based on disability).
There is also the principle of "concurrent jurisdiction," where both a court and a tribunal have jurisdiction over the same legal case. For example, in the case of Bray v Canadian College of Massage and Hydrotherapy [1], the Small Claims Court awarded damages for breaches of the Human Rights Code.
Therefore, it is important to evaluate the advantages and disadvantages of filing in the Small Claims Court or in the Human Rights Tribunal and make an informed decision on a case-bay-case basis.
While the Small Claims Court procedures may be more complex to navigate and more expensive than the Human Rights Tribunal, it is possible to claim costs and recover some legal fees at the court, while this option is not available in the cases that are filed in the Human Rights Tribunal.
On the other hand, the Human Rights Tribunal of Ontario can award monetary damages for both economic and non-economic losses, as well as ordering a party to cease the practice of discriminatory policies and implement the Human Rights Code in the workplace.
Seeking professional legal assistance in evaluating the issues in the case will benefit the litigants and help them choose the best legal forum for their claims.
[1]Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452 (ON SCSM)
Canada is among the Commonwealth nations, and the Monarch– currently King Charles III– is the Head of State in Canada. The Governor General, who swears to be faithful and bear true allegiance to the Monarch, is the King’s representative and is appointed by the King on the advice of the Prime Minister.
Many Canadians may think that executive power rests with the Prime Minister for whom they vote, and the Governor General has no political power and only carries on ceremonial duties, such as swearing the Cabinet into office or reading the Speech from the Throne.
On the contrary, the Governor General has Prerogative Powers allowing him or her to lawfully exert power over the Prime Minister, including dissolving the Parliament and dismissing the Prime Minister.
The Constitution Acts state that "all [executive] powers, authorities, and functions … shall be vested in and exerciseable by the Governor General, with the advice or with the advice and consent of or in conjunction with the Queen’s Privy Council for Canada, or any Members thereof, or by the Governor General individually, as the case requires."
Similarly, section 56.1 (1) of the Canada Elections Act gives the Governor General explicit powers and discretionary authorities to dissolve Parliament. In Conacher v. Canada (2010), the court confirmed that "the preservation of that power and discretion may also extend to the Prime Minister’s advice-giving role."
It is important to understand that many rules of the system of government in Canada are not codified in the Constitution. Rather, those rules are based upon constitutional conventions. For instance, the method of selecting the Prime Minister is not written in the constitution and is merely governed by convention.
In a recent court case– Democracy Watch v. Canada (2023)– the court reaffirmed that "convention[s] would not be legally enforceable and … that breach would only ‘create [sic] a deficit in legitimacy, not legality’..."
In “normal circumstances,” the powers of the Governor General may be restricted by constitutional conventions; however, on exceptional occasions, the Governor General can legally exercise discretionary authority to refuse the Prime Minister’s advice to dissolve Parliament or to unilaterally dismiss the Prime Minister and dissolve Parliament.
Although this has never happened in Canada, the Governor General of Australia in 1975, unilaterally removed Gough Whitlam, the Australian Prime Minister, from power following a constitutional crisis. This happened despite the fact that many Australians believed that an officer appointed by the Monarch could not sack a prime minister elected by the Australian people, and therefore, nation-wide protests followed.
Former Governor General of Canada, Adrienne Clarkson, refers to an “unspoken rivalry” between the Office of the Prime Minister and the Governor General of Canada. Nonetheless, some constitutional scholars in Canada believe that the Governor General's discretionary power to dismiss an elected Prime Minister is in fact a constitutional convention in the case of political deadlock.
Although it is expected that for the foreseeable future, political deadlocks in Canada will be resolved without the dismissal of an elected Prime Minister, it is not illegal, or even far-fetched, for the Governor General to exercise discretionary power and arbitrary authority. And, if it happens, it should not surprise the Canadians.
Emojis are increasingly becoming part of our daily communications. Although language, and by extension forensic linguistics, have been aiding the uncovering of crimes since late 1960s, emojis have particularly entered the realm of legal discovery in recent years.
Interpreting emojis within context has become an integral part of many legal and criminal cases. The use of emojis in the legal context ranges from emoji-based secret lingo in drug dealings to workplace sexual harassment in contravention of human rights.
The United States Drug Enforcement Administration (DEA) recently released a reference guide to help parents and educators decode drug-related emojis in text messages and on social media. This is due to the fact that drug dealers commonly target teenagers on social media while using emojis to go under the radar.
Some emojis are obvious, such as a mushroom🍄 representing magic mushrooms or a pill💊 representing fake prescription pills. However, decoding other emojis is more complicated. For example, Emojipedia describes a maple leaf🍁 as a reference to Canada/Canadian or more generally to the season of fall, but in drug dealers’ terminology, a maple leaf is a universal reference to drugs.
There are other emojis that have dual meanings. For example, a blue heart💙 may appear to be a benign reference to love and support for a specific cause, such as autism awareness, but in fact a blue heart is typically used to refer to meth in drug rings. Similarly, a brown heart🤎 may be an innocent reference to racial equality and justice for peoples of color, but depending on the context it may be a specific reference to heroin.
Further, the addition of certain emojis to innocent text messages can drastically change the meaning and function of the text message. For example, in the case of a workplace sexual harassment before the Human Rights Tribunal of Ontario, the employer was accused of inappropriate sexual advancements and ultimately sexual harassment and reprisal.
When providing disclosure, the employer who was accused of sexual harassment only provided the words of each text message to the Tribunal. However, the employee who had filed the complaint submitted the full text messages including any emojis that would have been part of the text message.
An actual text message from this case can indicate how the addition of an emoji can morph a formal and serious work-related text massage into a playful and lascivious text message. On July 8, 2014 the employer sent a text message to his employee. The employer submitted the following text message to the Tribunal: "Sorry to disturb u on your day off".
While in fact the text message included an emoji and was as follows: "Sorry to disturb u on your day off😛". The actual text message shows that inserting an emoji can completely change the tone of the text message. The text with emoji may further imply that the employer approves out-of-workplace relations.
The employer in this case was found guilty of sexual harassment, poisoned work environment, and reprisal in the workplace. Although the case was decided based on multiple circumstantial factors, the use of emojis and their implications were taken into account in the Tribunal's final decision.
In Canada, emojis, as well as emoticons (or primitive emojis), have been considered to have evidentiary value in legal decisions at different court levels and tribunals. If you think you have a legal case that is based on language evidence, you should seek professional help. Also, keep in mind that you may benefit from hiring an expert witness to testify in your case so that the court can make an informed and educated decision.