This post was contributed by Sasha Segal, Associate, Norton Rose Fulbright Canada LLP (Toronto)

Recently, the Ontario Court of Appeal confirmed that the test for establishing a case of discrimination is not a strict one.

In Peel Law Assn. v. Pieters (2013 ONCA 396), two lawyers alleged that the Peel Law Association (the “PLA”) discriminated against them on the basis of their race and colour. The two lawyers were both black and were accompanied by a black articling student while attending a trial at the Brampton Courthouse. When they attempted to enter the PLA’s lawyer lounge, which is only accessible to lawyers/law students, they were required by the Library’s Administrator to provide identification confirming their status as lawyers/law student. No one else in the lounge was required to provide identification.

The lawyers filed an application with the Ontario Human Rights Tribunal (the “Tribunal”) alleging that the PLA and the Library Administrator discriminated against them because of their race and colour in the provision of its services, contrary to the Ontario Human Rights Code (the “Code”). Under the Code, every person is entitled to equal treatment with respect to services, goods and facilities, without discrimination.

Decision of the Lower Courts

The Tribunal allowed the Application, concluding that the lawyers’ race and colour were factors in their selection for questioning by the Library Administrator, and therefore, they had been subject to discrimination. Each lawyer was awarded $2000 for injury to his dignity.

The Divisional Court judicially reviewed the Tribunal’s decision and overturned it. The Divisional Court held that there was not a “causal nexus” between the lawyers’ race and colour and their selection for questioning by the Library Administrator and as a result, the evidence did not support a finding of discrimination. The Appellants appealed to the Court of Appeal.

Decision of the Ontario Court of Appeal

The Test for Discrimination

The Court of Appeal rejected the test for discrimination applied by the Divisional Court, concluding that attaching the modifier “causal” to “nexus” elevated the test beyond what the law requires. The Court confirmed that all that is required is a connection between the adverse treatment and the ground of discrimination. The ground of discrimination (i.e., race) must somehow be a factor in the adverse treatment (i.e., the selection for questioning by the Library Administrator). This test, rather than the test applied by the Divisional Court, ensures that the focus in human rights cases is on the discriminating effects of the alleged actions, rather than on the intentions of the parties involved.

Burden of Proof

The Court confirmed that the burden of proof in discrimination cases rests on the Applicant to establish a prima facie case of discrimination; that is, a case which “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the applicant’s favour in the absence of an answer from the respondent”. The Court noted that relatively little evidence is required before the inference of discrimination is permitted. The standard of proof only requires that the inference of discrimination be more probable than not.

The Court then made an important distinction between the burden of proof, which rests on the Applicant, and the evidentiary burden, which rests on the Respondent. Once the Applicant establishes a prima facie case of discrimination, the evidential burden, but not the burden of proof, shifts to the Respondent to provide an explanation. Although the Respondent is not required to call evidence, if it chooses not to do so, it risks an adverse finding that there is no credible explanation for the alleged discriminatory conduct. Although the evidentiary burden shifts to the Respondent, the burden of proof remains with the Applicant to establish that the Respondent’s evidence is false or a pretext.

Deference to Decisions of the Tribunal

The Court reaffirmed that the Tribunal’s decisions ought to be afforded deference by reviewing courts. The standard of review remains that of reasonableness; that is, the Tribunal’s decision must fall within a range of reasonable outcomes. The Court concluded that the Tribunal’s decision in this case was reasonable and the Divisional Court erred in overturning it. The Court also left to the discretion of the Tribunal how it structures its analysis. The only requirement is that the Tribunal consider all of the evidence in determining whether discrimination occurred.

Consideration of Social Science

The Court confirmed that it has been frequently recognized in the jurisprudence that racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices. Although the Court recognized that a tribunal ought to exercise care in taking judicial notice of social science which is not introduced into evidence before it, the Court also recognized the utility of social science evidence in adjudicating a particular case. The Court held that an adjudicator must exercise balance and judgment in this regard to ensure that judicial notice of social science which is not in evidence does not result in unfairness to either party.

Recording of Proceedings

Finally, the Court questioned why proceedings of the Tribunal are not recorded, given the availability of recording equipment. The Court suggested that such recordings would be of assistance to reviewing courts. As a result of this decision, we may see the Tribunal begin to record its proceedings, which could be advantageous to either party should the decision be subject to review.

Takeaway

This decision confirms that the test for discrimination is not a high one. The applicant must merely present evidence that a prima facie case of discrimination exists, which requires demonstration that the applicant has a characteristic that is protected under the Code, that they have experienced an adverse impact, and that the protected characteristic was a factor (and it need not be the only factor) in the adverse impact. Once a prima facie case of discrimination exists, the evidentiary burden, not the burden of proof, shifts to the respondent to justify the conduct or practice.

Although the Court of Appeal did not go so far as to impose a legal requirement on respondents to call evidence in response to a human rights application, the decision suggests that practically speaking, a respondent ought to do so in order to avoid an adverse finding.