Racism – is speculation enough? 

publication 

April 2012

Employment and Labour Bulletin

"A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination."1

This quotation encapsulates the finding of the Ontario Superior Court of Justice, Divisional Court (the "Court") in the recent case of Peel Law Association v Pieters ("Pieters"). In Pieters, the Court overturned a finding by the Human Rights Tribunal of Ontario (the "Tribunal") that a librarian's decision to confirm the identity of three black men (and no other persons) in a lawyers' lounge, violated the Ontario Human Rights Code (the "Code").

facts

The Peel Law Association ("PLA") operates a lawyers' lounge and library in the Brampton, Ontario courthouse for the exclusive use of lawyers and law students. As part of their job duties, the librarians are expected to routinely check the identification of persons using the facilities.

On May 16, 2008, a librarian approached three individuals who were in the lounge, all of whom "self-identify as Black," and asked them to confirm they were lawyers or law students (and therefore admissible to the lounge). No one else in the lounge was black, although there were other "racialized" persons in the lounge, and no one else was asked for identification at that time. Two of the men (the "Complainants") felt they were singled out as a result of their colour, and filed an application with the Tribunal against PLA and the librarian, Melissa Firth ("Firth"), under the Code.

decision of the Human Rights Tribunal of Ontario

The Tribunal found that race was a factor in Firth's decision to approach the Complainants for confirmation of identity. In coming to this conclusion, the Vice-Chair found that Firth had questioned the Complainants in a demanding and aggressive fashion, and that she did not ask anyone else in the lounge for identification at that time. These factors were found to establish a prima facie case of discrimination. Therefore, Firth and PLA were required to provide a credible and rational explanation to establish that Firth's conduct was not tainted by race or colour.

Despite hearing (and accepting) evidence that Firth regularly asked for identification from persons in the lounge and library, the Vice-Chair found that discrimination had occurred. Each of the Complainants was awarded $2,000.00 for "…violation of their inherent right to be free from discrimination and for injury to their dignity, feelings and self-respect."2

the decision of the court

The decision of the Tribunal was reviewed by the Court on a standard of "reasonableness," which requires the highest degree of deference respecting determinations of fact and human rights law. Applying this standard, the Court found that the Tribunal's decision could not be rationally supported and fell outside the range of possible acceptable outcomes defensible in fact and law.

In coming to this conclusion, the Court reinforced prior case law that indicates complainants bear the initial burden of proving prima facie discrimination, and accordingly, must show evidence of all of the following:3

a) a distinction or differential treatment;

b) arbitrariness based on a prohibited ground;

c) a disadvantage; and

d) a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.

Only after all four of these factors have been established will the burden shift to the
respondent(s) to provide a non-discriminatory explanation for their conduct.

In Pieters, the Court found that these factors were not established. In particular, the Court found that:

1. There was insufficient evidence of differential treatment. Firth and PLA put forward evidence that Firth's job duties required her to seek identification from persons in the lounge and library, and it was her established practice to do so. Also, the Complainants were located near the door, and were the first persons Firth encountered on her way into the lounge.

2. There was no evidence of a causal nexus between race/colour and Firth's conduct. Rather, the Vice-Chair incorrectly assumed the causal nexus from his finding of differential treatment.

The Court concluded that the Tribunal had improperly reversed the burden of proof in Pieters, thereby placing "an impossible onus" on Firth and PLA to disprove discrimination. The Court overturned the damages awarded to the Complainants, and awarded $20,000.00 in costs to Firth and PLA.

importance for human rights respondents

The decision in Pieters may be useful for respondents to human rights complaints in Ontario, although the Complainants have sought leave to appeal. In particular, the Court's clear statement that "(s)peculation or inferential statements are simply not enough"4 to prove discrimination, will be helpful in future cases where no concrete evidence of discrimination exists.

However, in such cases (where there is no evidence of discrimination), it is also possible that the application may be dealt with by the Tribunal at a summary hearing. In such event, the test outlined in Pieters would not apply, but rather, the Tribunal will consider whether there is a "reasonable prospect" that the complainant will be able to prove discrimination or harassment on a balance of probabilities.5 Since it is becoming increasingly common for the Tribunal to order summary hearings on its own initiative, respondents should be prepared to argue that the applicant(s) have not met this standard in frivolous, vexatious and tenuous cases.

Further, before relying too heavily on Pieters, respondents should also consider the recent Ontario Court of Appeal case of Shaw v Phipps ("Shaw")6. In Shaw, a police constable was found to have violated the Code when he chose to inquire into the identity of a black letter carrier working in an affluent neighbourhood. In that case, there also did not appear to be direct evidence that the constable took race or colour into account. However, the Court of Appeal stated that:

There is seldom direct evidence of a subjective intention to discriminate,
because "(r)acial stereotyping will usually be the result of subtle unconscious
beliefs, biases and prejudices" and racial discrimination "often operates on
an unconscious level." For this reason, discrimination is often "proven
by circumstantial evidence and inference."
7

The Court of Appeal upheld the Tribunal's decision in Shaw that colour was a factor, and "probably the predominant factor, whether consciously or unconsciously," in the constable's decision to question Shaw's identity.

On its face, there does not appear to be much more evidence in Shaw than there was in Pieters establishing that colour was a factor in the constable's actions. However, the Court of Appeal in Shaw found that the Tribunal was entitled to draw reasonable "inferences" from the facts.

The opposite conclusions reached in Pieters and Shaw provide an example of the uncertainty of the outcome of human rights cases. In the end, despite the reasoning in Pieters, where there is no concrete evidence of discrimination the result may simply depend upon whether the specific panel of the court or tribunal accepts the explanation of the respondents for their conduct.

by Lyndsay A. Wasser

1 Peel Law Association v Pieters, 2012 ONSC 1048 at para 44.

2 Ibid at para 2.

3 Supra note 1 at para 14.

4 Supra note 1 at para 46.

5 Dabic v Windsor Police Service, 2010 HRTO 1994.

6 2012 ONCA 155.

7 Ibid at para 34.

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2012