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Understanding Discrimination, Guidance from the Divisional Court

Peel Law Association v. Pieters is a recent decision that clarifies the test for discrimination, an important concept for employers to understand.  The decision overturns a finding from the Ontario Human Rights Tribunal (“OHRT”) that the Peel Law Association and their head librarian violated the Claimants’ rights under Section 1 of the Human Rights Code to equal treatment on the basis of race and colour.

Facts

This discrimination claim arose out of events at the A. Grenville & William Davis Courthouse in Brampton, Ontario where the Peel Law Association managed a lounge and library.  Internal policy only permitted lawyers and law students in the lounge and library areas and it was primarily the job of the Peel Law Association’s head librarian to enforce this policy.  In May of 2008 the librarian approached three men in the lounge and asked that they provide identification, the tone of the request was disputed.  The men that were approached self-identify as black and were wearing business suits rather than legal robes.  There were other persons in the lounge, some white and some that likely identify as belonging to other racial minority groups, however,  none of the others in the lounge would be racialized as black.  Some of the other individuals in the lounge, like the three black men, were unknown to the librarian.  In response to the identification request one of the men told the librarian that her actions amounted to racial profiling.  The three men approached were closest in proximity to the librarian on her entry to the lounge area.  Two of the men stated they were lawyers and the other a law student.  The librarian and one of the men agreed to exchange business cards, each following the other to a location to retrieve the card.  The lawyer that went to retrieve his card felt that this action treated him as suspect and humiliated him further.  The librarian gave evidence that she made identification requests at least 8- 12 times a week and has made the request to several persons she identified as white.  The two individuals that were lawyers brought a claim to the OHRT alleging that the librarian and the Peel Law Association violated their rights as set out in Section 1 of the Human Rights Code, which provides:

“Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability

HRTO Decision

                  The HRTO Vice-Chair found that none of the witnesses testifying at the hearing provided a complete story of what occurred.  Nevertheless, the Vice-Chair determined that there were other people unknown to the Respondent in the lounge, that the only black men in the lounge were approached, that the librarian interrupted her planned route to speak to them and that they were approached in an aggressive and demanding manner.   These facts were sufficient under the Vice-Chair’s reading of the law to require the Respondents, the Peel Law Association and librarian, to provide a non-discriminatory explanation for the conduct.  In the Vice Chair’s view “a persuasive non-discriminatory reason for the questioning” was not provided necessitating a finding that the decision to question the complaints was tainted by considerations of their race and colour.

Divisional Court Decision

A panel of judges on the Divisional Court overturned the OHRT decision and dismissed the complaint.  In doing so they placed weight on facts not given sufficient weight and explained the test the Claimants must meet before requiring the Peel Law Association and the librarian to provide a nondiscriminatory reason for the conduct.

The judges stated that the Claimants must first provide evidence to support the following findings:

a)      a distinction or differential treatment;

b)      arbitrariness based on a prohibited ground;

c)       a disadvantage; and

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

In conjunction with the above the court quoted the 2007 Supreme Court Decision of McGill University Health Centre which stated:

… there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy.  And it is the claimant who bears this threshold burden.

The court further added that “while the Claimants are  not required to prove intent or motive, mere speculation” is not enough to shift the burden to the Respondent.  “[T]he possibility of discrimination is not a sufficient basis to find a breach of the Code.”  A claimant must first prove discrimination on a balance of probabilities before the responding party is required to prove a statutory defence or exemption.

The court determined that the librarian’s actions had to be viewed in light of the policy, her responsibilities, her past practice of asking for identification to all persons and the Claimants being closest to her upon entering the lounge area.  In light of the above, the court found that there was no basis to find that the Respondents subjected the Claimants to differential treatment.

It was also determined that there was not a casual nexus between a distinction or differential treatment and the disadvantage suffered.  A Claimant cannot simply point to membership in a racialized group and an unpleasant interaction to shift the onus to the Respondent.

The court awarded the Peel Law Association and their librarian costs in the amount of $20,000.00.

CCP has learned that a motion for leave to appeal the dismissal of the claim has been filed by the Claimants and we will keep you up to date on any further developments in this case.  Nevertheless, at this point, this case serves as a reminder that while discrimination complaints are taken very seriously at all levels of our justice system “the Respondent is never required to disprove discrimination per se”.

Lawyers at CCP regularly represent employers faced with allegations of discrimination at the OHRT, the Courts and the Labour Relations Board.  Consider consulting CCP counsel if you have any questions about this case or if your workplace is facing allegations of discrimination.

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.