The Ontario Court of Appeal has an error-correcting function and in the recent case of Pieters and Noble v. Peel Law Association and Firth (2013 ONCA 396)] the court corrected several errors made by a three-judge panel of the Divisional Court. The Court of Appeal restored the finding of a Vice-Chair of the Ontario Human Rights Tribunal which found that the librarian employed by the Law Association at the Brampton court house had racially profiled three black lawyers by stopping them in the lounge of the court house and asking that they produce identification to prove that they were lawyers.
In this case, Mr. Pieters, Mr. Noble and an articling law student were involved in a case at the Brampton court house. They were not gowned. There are all black. During a break in the case, the three men went to the lawyers' lounge operated by the Peel Law Association with some other lawyers who were involved in the case. According to the Law Association's policy, only lawyers and law students are permitted to use the lounge, robing room and library at the court house and signs are posted to that effect.
Firth, the librarian, approached the three men aggressively and asked them to produce identification to prove that they were lawyers. She did not ask to see the identification of anyone else in the lounge. No one else in the lounge was black. The lawyers brought an application to the Tribunal alleging, in essence, racial profiling. The Vice-Chair of the Tribunal found the rights of the men had been infringed and awarded each $2,000 for injury to his dignity.
The Divisional Court allowed the Law Association's application for judicial review and quashed the decision of the Tribunal.
In a well-reasoned decision, Justice Juriansz, writing for the appeal court (Justices Cronk and Pepall concurring), saw what was largely obvious to most of us who have been following the case, overturned the decision of the Divisional Court and reinstated the decision of the Vice-Chair.
In reaching its decision, the Justice Jurianzl found that the Divisional Court had erred in finding that there needed to be a "causal nexus" between a prohibited ground of discrimination and the disadvantage suffered by a complainant. Such a requirement elevated the test for discrimination beyond what the law requires and seemed to run counter to the evolution of human rights jurisprudence which focuses on the discriminatory effects of the conduct rather than on intention and direct cause.
Secondly, Justice Jurianz found that the Divisional Court had erred in confusing the distinction between burden of proof and "evidential burden". In this case, the evidential (or evidentiary) burden works as follows. The onus lies on the complainant to establish discrimination on the balance of probabilities and if the complainant does that, the evidentiary burden shifts to the respondent. Once the evidentiary burden has shifted, the respondent faces the tactical choice of explaining his conduct or risking being found guilty. As in medical malpractice cases, where "the physician is usually in a better position to know the cause of an injury than the patient", in discrimination cases, the question of whether a prohibited ground was a factor in adverse treatment, is a difficult one for the complainant. Respondents are uniquely positioned to know why they asked a person for identification. In these cases, the outcome depends on the respondent's state of mind which cannot be directly observed and must always be inferred from circumstantial evidence. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
The shifting of the evidential burden does not put the respondents in the position of having to prove a negative, as the Divisional Court held. The Court of Appeal held that 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.
Thirdly, the court rejected the respondents' argument that the Tribunal erred by analyzing the evidence in a compartmentalized fashion. The court held that it would leave to tribunals how they structured their analysis of the evidence. The only thing that matters is that "at the end of the day" the tribunal must take into consideration all the evidence.
Fourthly, the court held that the Divisional Court erred by finding that the Vice-Chair had disregarded evidence. The Vice-Chair had considered the fact that the appellants had been seated near the door to the library, which was not even raised by the librarian as a reason for her conduct, (although the Divisional Court inexplicably held that it could have been the reason why she questioned only the black lawyers). As to moving furniture, the Vice-Chair 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 rearranged the furniture.
At the time of the incident, the Law Association's librarian had falsely claimed that the reason she singled the appellants out was that she knew that everyone else in the lounge were lawyers. This statement was false. It turned out that some people were attending the lounge for the first time and therefore the librarian could not have known them. In addition, others in the lounge were in fact, not lawyers. The Court of Appeal held that 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.
Finally, the court held that no great unfairness resulted from the Vice-Chair's referring to social science. The reference did not effect his disposition of the main issue of the case, i.e. whether the appellants' race and colour were factors in their selection for questioning.
The Court of Appeal held that the evidence relied upon by the Vice-Chair provided ample basis to support the inference that the appellants race and colour were factors in the librarian's questioning of them.