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Queen's University
 

Racial Discrimination

What happens with a court uses the wrong test for establishing prima facie discrimination?

Full Case

Peel Law Assn. v Pieters [2013] ONCA No.396

Facts

This is an appeal of a decision by the Divisional Court (Ontario) to overturn a decision of the Ontario Human Rights Tribunal  regarding a librarian who, when travelling from the library towards a robing room, across a lounge, stopped to ask a black lawyer and his two black associates for identification.  

HRTO's finding

The Vice-Counsel of the HRTO found that the librarian had discriminated against the three complainants based on the following evidence: 

  1. "that she only challenged the right of the three black men to be in the lounge;
  2. that she had no intention of challenging any of the other persons in the lounge;
  3. that she interrupted her planned trip to the robing room to stop and question the appellants; 
  4. that she approached them in an aggressive and challenging manner, not identifying herself and interrupting the first appellant on the phone;
  5. that "the blunt and demanding manner" in which she questioned the appellants was not consistent with how she generally carried out her function;
  6. that she falsely claimed, at the time, that she had singled out them because she knew everyone else in the lounge to be a lawyer; 
  7. that she denied having made that claim;
  8. that she was completely unable to offer a credible non-discriminatory explanation for her decision to challenge the appellants; and
  9. that her version of the encounter, including her denial of asking the first appellant for identification, was largely rejected" (para 128)
Divisional Court's finding

The Divisional Court overturned the decision of the HRTO, claiming that the Vice-Counsel had made two errors in judgement: 

  1. "finding that a prima facie case of discrimination had been made out when there was an insufficient evidentiary basis to do so; and
  2. improperly reversing the burden of proof, placing an impossible onus on the respondents to disprove discrimination" (para 19)
Test for establishing prima facie discrimination

The Divisional Court set forth a test for establishing prima facie discrimination in which the following elements must be determined (para 22) 

  1. "a distinction or differential treatment
  2. arbitrariness based on a prohibited ground
  3. a disadvantage; and
  4. a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered. " (para 22) 

It determined that the Tribunal's finding of prima facie discrimination was inconsistent with this test. (para 23) for the following reasons:

  1. "First, the Court observed that it was a fact that the appellants were seated closet to the door through which the librarian entered and this was "clear evidence" as to why [she] approached the complainants for identification rather than anyone else... "(para 24) 
  2. "Second, the Vice-Chair's finding that the personal respondent's focus was on the first appellant during the encounter ""was a credible explanation for the fact that she did not check the identification of other people in the lounge"".  (para 25) 
  3. "Third, the Vice-Chair made a mistake by relying on the fact that the librarian interrupted her trip to the robing room. It was a mistake because the Vice-Chair had accepted evidence that she regularly checked both both areas. It was a mistake because the Vice-Chair had accepted evidence that she regularly checked both areas. The librarian's duty to enforce the policy in both areas had to be kept in mind when evaluating her actions. Therefore, stopping on the way to the robing room to question the appellants could not support an inference of differential treatment."  (para 27)
  4. Fourth, there was conflicting evidence as to whether the librarian's demeanour was aggressive at the time. Even if it was, this does not establish differential treatment as the Vice-Chair had found that her identification requests of others had at times led to difficulties, That this incident was contentious was not enough to establish differential treatment. 
  5. "Fifth, the Divisional Court concluded that the finding that a prima facie case existed without a proper evidentiary foundation had the effect of reversing the burden of proof by calling upon the respondents to prove there was no discrimination. This placed the librarian in the difficult position o trying to prove a negative, that she was not motivated by the appellants' race and colour."  (para 28)
  6. "Sixth, the Divisional Court found that the Vice-Chair's reliance on police profiling cases to infer a nexus between the appellants' race and colour and their treatment was misconceived." (para 29)
  7. "Finally, the Divisional Court observed that the Vice-Chair had failed to resolve important issues of credibility. Given that the Vice-Chair had made a negative finding about the librarian's credibility, he should have also resolved the credibility issues related to the first appellant's conduct and whether the appellants were aware of PLA's policy restricting the lounge to lawyer" (para 30) 
  8. "The Divisional Court concluded that the evidence did not even meet the threshold of differential treatment and quashed the Vice-Chair's order without remitting the matter."  (para 31) 

 Issues

  1. Did the Divisional Court apply the correct test for discrimination?
  2. Did the Divisional Court err by finding the Vice-Chair Reversed the Burden of Proof?
  3. Did the Vice-Chair err by analyzing the evidence in a compartmentalized Fashion?
  4. Did the Vice-Chair err by referring to social science not in evidence before him?
  5. Did the Divisional Court err by finding that the Vice-Chair disregarded evidence (a. the fact that the appellants were seated near the door to the library; b)The moving of furniture; c) the false explanation

Decisions

  1. No
  2. Yes
  3. No
  4. No
  5. No

Reasons

  1. The test for prima facia discrimination set forth by the Divisional Court (see above) is not the one traditionally used by human rights tribunals (para 54). These bodies use the definition set forth by Abella, J in Moore and reiterated by Lang in Shaw. Here, we find a three-part test where the applicant must show "1) that he or she is a member of a group protected by the Code; 2) that he or she was subjected to adverse treatments; and 3) that his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment." (56). In neither iteration of the test (in Moore and Shaw) does the issue of establishing a causal link or "nexus". The CA stated that while the word "nexus" was acceptable, the term "causal" is not "I do not think it acceptable, however, to attach the modifier "causal" to "nexus". Doing so seems to me to elevate the test beyond what the law requires. The DC's requirements of a "causal nexus " or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause." (63)
  2. "[...]The Divisional Court's reasoning that the Vice-Chair reversed the burden of proof contains two errors. First, the Divisional Court lost sight of the distinction between the burden of proof and the evidentiary burden. The Vice-Chair having found a prima facie case existed properly looked to the respondent to provide an explanation.Second, the Divisional Court went on to state that "by improperly reversing the burden of proof, the Tribunal placed [the librarian] in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race or colour." The shifting of evidential burden does not put the respondents in the position of having to prove a negative. Rather, it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else, namely, why they made a particular decision or took a particular action. (75-77)
  3. By "compartmentalized", the appellants referred to the Vice-Chair's analytical framework, where, firstly, they established prima facie discrimination using the complainant's evidence only and where, secondly, they established discrimination by weighing the evidence of the respondent against that of the complainant on a balance of probabilities. The CA ruled that "the only thing that matters is that at the end of the day, the tribunal must take into consideration all the evidence. (para 89). 
  4. The social science to which the appellants refer lies in the Vice-Counsel's quote from a Nassiah, a case involving racial profiling by a police officer and in which social science evidence had been introduced. The Court of Appeal said:  "I accept the respondents' contention that a tribunal needs to exercise care in taking judicial notice of social science not introduced in evidence before it. The parties do not have the opportunity to challenge the matter judicially noticed and it may be wrong. At the same time, social science can deepen the understanding of interactions between individuals generally, thus assisting the adjudication of a particular case. Balance and judgement is necessary to ensure that judicial notice of social science not in evidence does not result in unfairness."  (120)./ In this case, the CA determined that "While I accept that a tribunal must exercise care and caution in taking judical notice of social science evidence introduced in another case, there was no unfairness done in this case, The Vice-Chair's resort to Nassiah was of no material consequence to his decision" (124)
  5. The CA considered the handling of three pieces of evidence: 

The fact that the appellants were seated near the door to the library

"It is beyond doubt that the Vice-Chair considered the appellants' location as a potential explanation because he commented on it specifically. He observed that the librarian "could not generate a credible non-discriminatory reason for why she was questioning the applicants, for example...that she was in the process of questioning everyone in the lounge she did not know and was beginning with the applicants". On my reading of his reasons, the Vice-Chair eliminated the appellants' location as a non-discriminatory justification because he regarded it as an explanation that could have been very easily given. The fact it was not given led him to discount it. This reasoning was open to him." (97)

The moving of furniture

"The Vice-Chair took the incident of the improper moving of furniture into account. (para 100) and that he "observed that the librarian never said a reason she questioned the appellants was because of a concern that they may have been the persons who re-arranged the furniture. As I noted above, he attached much weight to the librarian's inability to offer any credible reason for questioning the appellants and he was entitled to do so" (para 101).  Furthermore, the CA emphasized that the Vice-Chair has noted that "lawyers entitled to use the lounge can improperly move furniture."  The location of the appellants on improperly moved furniture does not, therefore,  constitute a credible reason for questioning their entitlement to be in the lounge, Again, the CA noted that the Vice-Chair had determined that the librarian had never suggested to the three black persons that she was questioning them because of the furniture incident. (para 103). The CA found "no error in the Vice-Chair's reasoning" that the librarian questioned the three men because of their entitlement to be in the lounge and not because of their link to the improperly moved furniture, (103).

The false explanation (that the librarian knew everyone else in the room to be a lawyer)

"The Vice-Chair's rejection of both the appellants's location and the moving of furniture as potential explanations should be considered in the context of his reasons as a whole. At the time, the librarian had falsely claimed that the reason she singled the appellants out was that she knew everyone else in the lounge. A false or shifting explanation for the impugned conduct can be used to support the inference of discrimination.It was open to the Vice-Chair to draw an adverse inference from this false claim. On my reading he did so." (105, my emphasis)

"The Vice-Chair was entitled to place great weight on the false explanation given at the time, and the librarian's inability to articulate any other reason for questioning the appellants. He was entitled to reason that if the location or the furniture had been what prompted the appellants' questioning, it would have been easy enough to say so." (108)

Damages

"I would allow the appeal, set aside the decision of the Divisional Court and reinstate the decision of the Vice-Chair. I would fix the appellants' costs of the judicial review application in the Divisional Court, and of the leave application and appeal in this court in the total amount of $30,000 inclusive of disbursement and HST. "(136)

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000