Monday, April 16, 2012

Court overturns racial profiling decision

Peel Law Association v. Pieters, 2012 ONSC 1048 (Div Ct.)
The Divisional Court of Ontario (Justices Chapnik, Hockin and Hoy) released a decision on February 13, 2012 which overturned an award of Vice-Chair Eric Whist, of the Human Rights Tribunal of Ontario ("HRTO"). In its award, the Tribunal ("Tribunal") found that the Peel Law Association ("PLA") and its librarian, Melissa Firth, had discriminated against the respondents, Selwyn Pieters and Brian Noble in the provision of services, goods and facilities on the basis of their race and colour, contrary to section 1 of the Human Rights Code (the "Code"). Both Pieters and Noble are black, of ethnic African descent.
The Tribunal awarded Pieters and Noble compensatory damages of $2,000 each for the PLA's violation of their rights to be free from discrimination and for injury to their dignity, feelings and self-respect. PLA and Firth appealed that decision to the Divisional Court.
The background facts are summarized as follows:
On May 16, 2008, Pieters, Noble and a law student who worked for Pieters, were using the lawyers lounge of the PLA in the Brampton court house. PLA policy states that only lawyers and law students can use the lounge and the library. Paralegals and the public are not permitted to use these facilities.
Both respondents and the law student are black. All three individuals were dressed in business suits but none were gowned. Firth, as the PLA's librarian, has primary responsibility to ensure compliance with the policy. Firth approached the respondents in an aggressive manner asked them to confirm that they were lawyers. The vice-chair found that race factored into Firth's decision to approach the respondents. Firth did not approach anyone else in the lounge or ask anyone else the same question.
At the time, others were using the lounge, some of whom were "racialized" (South East Asian), none of whom were black. The South Asian lawyers volunteered to produce their identification to Firth, but she did not check their identification. The Tribunal concluded that these facts constituted a sufficient basis to require an explanation from Firth as to why her decision to question Pieters and Noble was not tainted by their race or colour. The Tribunal found that there was no credible and rational explanation for Firth's decision to abruptly interrupt a trip to the courthouse robing room to stop and question the respondents and found that the decision was "in some measure, because of their race and colour".
At the hearing, Firth testified that she had approached the respondents because she knew everyone else in the lounge at the time was a lawyer. However, that statement was proven false given that one individual in the lounge was not a lawyer and one lawyer in the lounge had never been there before.
Divisional Court Decision
Justice Chapnik, writing for the Court, held that that applicable standard of review of the Trigbunal's decision under the Code was one of "reasonableness". She also found that within the reasonableness standard, "the highest degree of deference should be awarded to the Tribunal in respect of determinations of fact and the interpretation of human rights law". Decisions of a tribunal of the HRTO are required to be rationally supported and to fall within a range of possible, acceptable outcomes that are defendable in fact and law.
Justice Chapnik found that with complaints under the Code the complainant bears the burden of proving a prima facia case of discrimination. A prima facia case of discrimination is one "which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of an answer from the respondent.". In order to prove a prima facia case of discrimination there must be 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 causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.
The key is the arbitrary nature of the treatment. The complainant need not prove an intention to discriminate.
In overturning the decision of the Tribunal, the Divisional Court inexplicably held that there had been no evidence adduced at the hearing that was capable of supporting the finding of a distinction or differential treatment or that any such treatment was motivated by race or colour. Accordingly, the court found that the Tribunal had erred in determining that there had been a prima facie case of discrimination.
In so doing, rather than giving the Tribunal "the highest deference" in respect of findings of fact, the court appears to have given no deference whatsoever to the Tribunal. The court noted that the respondents had been closest to the door of the lounge when Firth abruptly interrupted her trip to the robing room to ask them for identification and that was a sufficient reason why she had "singled them out". It also found that it was within Firth's job responsibilities to ask people for identification. The court found that in the circumstances, there was insufficient evidence for the Tribunal to determine that Firth, by questioning the respondents alone, had treated them differently from others in the lounge.
Curiously, it also found that because Firth had had "run ins" in the past with others whom she had asked for identification (some of whom were not black) that there was no evidence of differential treatment of the respondents.
Finally, the court found that because Firth was not a police officer with the power and authority to arrest and detain the respondents, there was no nexus between the alleged arbitrary conduct and the disadvantage suffered by the respondents.
The respondents were ordered to pay an all inclusive sum of $20,000 in costs to the PLA and Firth.
The problem with the Divisional Court's decision is that in finding there was "no evidence" to support the award it appears to arbitrarily "pick and choose" only the evidence to support its findings rather than to consider the evidence as a whole. In addition, the court mischaracterizes the evidence it did consider as not being arbitrary. For example, the court ignored the evidence that at the time of the incident there were a number of persons in the lounge that were unknown to Firth. The respondents were the only black men in the lounge and the only persons who Firth chose to question. It also ignores Firth's own statement, which was later discredited, that she knew everyone else in the lounge at the relevant time was a lawyer.
The court places undue emphasis on the location of Pieters and Noble, i.e. that they were situated nearest to the door from which Firth entered the lounge which seems in and of itself to be arbitrary in determining who to question. There was no credible explanation given at the hearing as to why Firth's focus was on Pieters, as opposed to any other individual in the lounge, why she did not check the identification of other persons in the lounge, even after they offered to provide it and why Firth abruptly interrupted her trip to the robing room to confront the respondents.
Moreover, the court places undue emphasis on the fact that policing the use of the lounge to ensure that the PLA policy was complied with was within Firth's job description. Simply because it was her responsibility to check identification, does not give her a licence to perform such duties arbitrarily. The fact that she may have stopped and questioned non-black people in the past is completely irrelevant. It was in her job to do so and, in any event, such behaviour would have been unknown to the respondents.
The Divisional Court decision is poorly reasoned and bad law. Pieters and Noble have appealed to the Ontario Court of Appeal. Stay tuned.



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