THE EMPLOYERS' EDGE
Finding of Discrimination Could be Based on A Prohibited Ground As a Factor, Not a Cause for Discrimination
On March 22, 2012 we blogged about the Divisional Court’s decision in Peel Law Association v. Pieters, where the Divisional Court overturned the findings of the Ontario Human Rights Tribunal (the “HRTO”) that the Peel Law Association and their head Librarian violated two lawyers’ rights under the Ontario Human Rights Code to equal treatment on the basis of race and colour when the head Librarian asked the lawyers and their articling student for identification. The Divisional Court’s decision was appealed, and recently set aside by the Ontario Court of Appeal.
The facts in this case can be found in our original blog. In its decision, the Court of Appeal addressed a number of issues, including whether the Divisional Court applied the correct test for discrimination. The test applied by the Divisional Court determined whether there was a distinction or differential treatment arbitrarily based on a prohibited ground that created a disadvantage for the lawyers, and whether there was a causal nexus between the arbitrary distinction and the disadvantage suffered. The Court of Appeal took exception to the Divisional Court’s use of the term “causal nexus”. The Court held that the correct test would determine whether the appellants were members of a group protected by the Code, whether they were subjected to adverse treatment, and whether their race or colour were factors in the adverse treatment. The Court of Appeal confirmed that discrimination arises from the effects of the conduct. Intention or direct cause are not required for a finding of discrimination. The Court of Appeal found that the Divisional Court did not apply the correct test of discrimination.
The Court of Appeal further found that the only issue before the Divisional Court ought to have been whether the HRTO’s decision fell within the range of reasonable outcomes, not whether the HRTO ought to have arrived at a different decision. The Court of Appeal found that the HRTO could reasonably arrive at the decision that it did, as its decision fell well within the range of reasonable outcomes. The Divisional Court erred in concluding that it did not.
The Court of Appeal’s decision confirms that an applicant does not have to show that discrimination was a cause to the differential treatment or that discrimination was intentional. Employers should take note that it is enough for an applicant to show that discrimination was a factor in the adverse treatment to succeed in establishing that discrimination occurred. Employers should also take note of the fact that the HRTO apparently does not have to be correct in its decision, but merely has to come to a decision that fell within the range of reasonable outcomes.
The lawyers at CCPartners regularly provide strategic advice on minimizing the probability that human rights issues would arise at the workplace and assist employers with human rights issues once they arise.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.