Supreme Court of Canada Extends Human Rights Protection from Employment Discrimination to Co-Workers

In British Columbia Human Rights Tribunal v. Schrenk 2017 SCC62, a majority of the Supreme Court of Canada found that the British Columbia Human Rights Code’s (“Code”) prohibition against discrimination “regarding employment” prohibits discrimination against employees even where the discriminatory conduct was carried out by a co-worker and not the employer.  The court held that the Code applies whenever the discrimination has a “sufficient nexus” with employment. 

In this case the complainant Sheikhzadeh-Mashgoul (the “Complainant”) filed a complaint with the British Columbia Human Rights Tribunal (“Tribunal”) against the respondent Schrenk (the “Respondent”) alleging employment discrimination based on religion, place of origin and sexual orientation. 

The Complainant worked for an engineering company as a civil engineer on a road improvement project.  The engineering company had certain supervisory powers over employees of a construction company, the primary contractor on the project.  The construction company employed the Respondent as a site foreman and superintendent.  When the Respondent made racist and homophobic statements to the Complainant, he was initially removed from the site but when the harassment continued, the construction company terminated his employment.

The Complainant immigrated to Canada from Iran and identified as Muslim.  When the Respondent learned of the Complainant’s origin and religion he made jokes about being blown up by a suicide bomb, called the Complainant a “fucking Muslim piece of shit”, and asked him whether he was going to call  his gay friend.  After the Complainant complained the Respondent persisted and shouted “go back to your mosque where you came from”.  Such behaviour resulted in the Respondent being removed from the work site.  However, subsequently he sent unsolicited emails to the Complainant in which he made derogatory insinuations about his sexual orientation. 

The Respondent brought an application to dismiss the complaint in which he argued that his alleged conduct was not discrimination “regarding employment” and was consequently beyond the jurisdiction of the Tribunal.  The Respondent’s argument was simple:  he was not in a position of economic authority over the Complainant.  He was neither the Complainant’s employer nor his superior in the workplace.  His conduct, however egregious, could not be considered discrimination “regarding employment” within the meaning of the Code.  

The Tribunal held that it had jurisdiction to deal with the complaint and denied the Respondent’s application to dismiss the complaint.  The British Columbia Supreme Court dismissed the Respondent’s application for judicial review, but the Court of Appeal allowed his appeal and found that the Tribunal had erred in law by concluding that it had jurisdiction over the complaint.

A 6 – 3 majority of the Supreme Court (Moldaver, Karakatsanis, Wagner, Gascon, Rowe and Abella) disagreed with the Court of Appeal and allowed the appeal (Justice Moldaver wrote the majority decision with a separate concurring decision written by Justice Abella).  Justices McLachlin, Cote and Brown dissented. 

The majority held as follows. 

The case involved the interpretation of the meaning of the words “employment” and “person” in the Code.   Reading the Code in line with the modern principle of statutory interpretation and the particular rules that apply to the interpretation of human rights legislation the prohibition against discrimination against employees prohibits discrimination whenever that discrimination has a sufficient nexus with the employment context.  This may include discrimination by their co-workers even when those co-workers have a different employer.   The discrimination in the case had sufficient nexus to the Complainant’s employment because the Respondent was integral to the Complainant’s workplace, the impugned conduct had occurred in the Complainant’s workplace and the Complainant’s work environment was negatively affected.   This contextual interpretation furthers the purposes of the Code by recognizing how employee vulnerability stems not only from economic subordination to their employers but also from being a captive audience to other perpetrators of discrimination such as a harassing co-worker. 

In separate reasons, Justice Abella found that the analysis requires that the meaning of employment discrimination be considered in a way that is consistent with the Supreme Court’s well settled human rights principles and not just the particular words of the Code.  Applying these principles leads to the conclusion that an employee is protected from discrimination related to or associated with his or her employment, whether or not he or she occupies a position of authority.  As a result, the Tribunal had jurisdiction to hear the complaint.

The dissenting three judges held that the prohibition against workplace discrimination in the relevant section of the Code applied only to employer-employee or similar relationships and authorized claims against those responsible for ensuring that workplaces are free of discrimination.  If the section were interpreted to allow claims against anyone in the workplace most of the next section which provides a separate protection against discrimination by unions and associates would be redundant.  The Code required the Complainant to focus on the employer, i.e. the people responsible for maintaining a discrimination free workplace.  Where the employer fails to intervene or prevent or correct discrimination the section is engaged.   

Importantly in this case, the court expanded human rights code protection against employment discrimination to encompass discrimination outside of the confines of the traditional employer-employee relationship. 

Regards,

Blair

Supreme Court finds no Discrimination in Company's Drug Use Policy

 

In a decision that was made remarkable by the dissent of a single judge, the Supreme Court of Canada dismissed an appeal from an employee of a mining company whose employment was terminated on the basis that he had violated his employer’s drug use policy.  See Stewart v. Elk Valley Coal Corp. 2017 SCC 30.

 

The employee, Ian Stewart, worked driving a loader in a mine operated by the company.  The mine operations were dangerous and maintaining a safe work site was a matter of great importance to the employer and its employees.  To ensure safety the employer implemented a policy requiring that employees disclose any dependency or addiction issues before any drug-related incident occurred.  If they did, they would be offered treatment.  However, if they failed to disclose and were involved in an incident and tested positive for drugs, their employment would be terminated.

 

Stewart used cocaine on his days off.  He did not tell his employer that he was using drugs.  When he was involved in an accident with his loader at work, he tested positive for drugs and later said that he thought he was addicted to cocaine.  The company terminated his employment.  Stewart, through his union representative, argued that he was terminated for addiction and that constituted discrimination under section 7 of the Alberta Human Rights, Citizenship and Multiculturalism Act.

 

The Albert Human Rights Tribunal (“Tribunal”) held that Stewart was terminated for breaching the company policy, not because of his addiction.  Its decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal.

 

There were three sets of reasons written by the judges of the Supreme Court.  Six judges for the majority, two in separate but concurring in the result, and one dissent.

 

The majority (reasons written by Chief Justice McLachlin) held that the Tribunal decision was reasonable.  There was evidence that was capable of supporting the Tribunal’s conclusion that the reason for Stewart’s termination was not addiction but breach of a policy.  The separate concurring reasons were written jointly by Justices Moldaver and Wagner.  They held that the Tribunal’s conclusion that Stewart’s direct dependence was not a factor in his termination was unreasonable but that the Tribunal reasonably held that the employer had met its obligation to accommodate Stewart to the point of undue hardship.  Justice Gascon, the only dissenting judge, held that the Tribunal had improperly considered the issues in the case and effectively excluded Stewart from the scope of human rights protections.  While the Tribunal had cited the proper legal test for prima facie discrimination, the matter in which it applied the test and the lack of an evidentiary foundation for its findings demonstrated that its holding on “contribution” was unreasonable and thus unworthy of deference. 

 

Six Justices for the Majority

 

The majority decision was supported by  Justices McLachlin, Abella, Karakatsanis, Cote, Brown and Rowe.  The Tribunal had found that Stewart had not established prime facie discrimination.  The majority held that the issues before the Tribunal were within its purview and attracted deference.  The only questions was whether the Tribunal’s decision was reasonable.  They found that there was evidence capable of supporting the Tribunal’s conclusion that the reason for the termination was not addiction but breach of the policy.  On the facts of this case, the Tribunal concluded that Stewart had the capacity to comply with the terms of the policy and that he would have been fired whether he was an addict or a casual user.  It was therefore not unreasonable for the Tribunal to conclude that there was no prima facie discrimination.  The Tribunal had unequivocally and repeatedly stated that addiction was not a factor in the company’s decision to terminate Stewart’s employment.  It also rejected the argument that denial prevented Stewart from disclosing his addiction prior to the accident.  While Stewart may have been in denial about his addiction, he knew he should not take drugs before working, had the ability to decide not to take them as well as the capacity to disclose his drug use to his employer.  Accordingly, the majority found that denial about Stewart’s addiction was irrelevant in this case.

 

The Two Concurring Justices

 

Justices Moldaver and Wagner held that the Tribunal’s conclusion that Stewart’s direct dependency was not a factor in his termination was unreasonable.  To show prima facie discrimination, Stewart was not required to show that his termination was not caused by his drug dependency, rather he had only to show that there was a connection between the protected ground – his direct dependency – and the adverse effect.  His exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination.  It did not eliminate it as a factor in his termination. 

 

The two justices found that notwithstanding these factors, the Tribunal reasonably held that the employer had met its obligation to accommodate Stewart to the point of undue hardship.  Given the employer’s safety objectives and responsibilities at the coal mine, it was crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences.  Subjecting Stewart to an individual assessment or imposing an unpaid suspension for a limited period as a disciplinary measure instead of imposing the serious and immediate consequence of termination of his employment would have undermined the policies deterrent effect.   

 

The Lone Dissenter

 

Justice Gascon viewed the matter much differently than did the other 8 judges.  His dissent is logical and forceful.  .  He held that although drug dependence is a protected ground of discrimination in human rights law, stigma surrounding drug dependence – like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those people suffering from other forms of disability – sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims.  He held that the improper considerations by the Tribunal effectively excluded Stewart from the scope of human rights protections. 

 

Justice Gascon held that a drug policy that automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence.  The legal threshold for prima facie discrimination is whether the complainant’s protected ground is a factor in the harm they suffer (this is also called “contribution”).  In this case, drug dependence was a factor in Stewart’s drug use, so the policy under which Stewart’s employment was terminated for using drugs was  prima facie discriminatory.

 

Justice Gascon ruled that the analysis of prima facie discrimination and, in particular, contribution, is concerned with discriminatory effect, not discriminatory intent.  Contribution addresses the relationship between an employee’s protected ground and harm, not between the ground and the intent to harm that employee.  A ground need only be at least one of the factors linked to the employees harm.  The Tribunal unreasonably held that Stewart’s addiction did not contribute to his termination based on four conceptual errors:

 

1. It required Stewart to make prudent choices to avoid discrimination.  Justice Gascon commented that requiring a complainant to be prudent in avoiding discrimination amounts to a sort of contributory fault defence in discrimination cases which places a burden on complainants to avoid discrimination, rather than on employers not to discriminate; it is irreconcilable with recently recognized statutory grounds that arguably implicate a complainant’s choices that are significant to their identity; generally contradicts the court’s rejection of drawing superficial distinctions between protected grounds and contact inextricably linked to those grounds; specifically contradicts the courts rejection of the view that choice makes drug users responsible for the harms of their drug use; re-enforces stigma by blaming marginalized communities for their choices; and substitutes the proper inquiry (i.e. whether drug-dependent individuals are adversely impacted by the policy) with an improper inquiry (whether drug dependent individuals are so overwhelmingly impacted by their addictions that any discrimination that they experience is caused exclusively by their addictions);
2. The Tribunal limited Stewart’s protections to an assurance of formal equality.  While both dependant and recreational drug users will receive similar treatment for violating the policy, only drug-dependent persons will uniquely and disproportionately struggle in complying with the terms of the policy. 
3. The Tribunal required Stewart to prove that he was treated arbitrarily or stereotypically, importing substantive consideration into the settled and low threshold for prima facie discrimination and shifting a justificatory burden from the employer onto the complainant; and
4. The Tribunal at all times required Stewart to prove a causal relationship between his ground and harm, a higher bar than the mere “factor” threshold repeatedly adopted by the court.  Justice Gascon held that prima facie discrimination should not be narrowly construed to preserve the enforceability of drug and alcohol policies.  Doing so imports justificatory implications into the prima facie discrimination analysis and narrows the court’s recent jurisprudence that holds that terminating an employee for a reason related to addiction is precisely what it means for that addiction to be a factor in the employee’s harm.

 

Justice Gascon held that under the proper test, the evidence before the Tribunal could not support its conclusion that Stewart’s drug dependence did not contribute to his termination.  His residual control over his choices merely diminished the extent to which his dependence contributed to his harm, it did not eliminate it as a factor. 

 

A workplace policy that accommodates employees through mechanisms which are either inaccessible by the employee due to their disability or only applicable to the employee post-termination, cannot justify prima facie discrimination.  Reasonable accommodation requires that the employer arrange the employee’s work place or duties to enable the employee to do his or her work, if it can do so without undue hardship.  In the human rights context, it is not appropriate for the employer to forego individual assessment in the interest of deterrence even in the safety-sensitive atmosphere of this particular workplace and even though that environment motivates strict drug policies.

 

Finally, Justice Gascon found that none of the employer’s efforts at accommodating Stewart provided him with accessible accommodation during his employment and those efforts failed to consider his individual circumstances in a dignified manner.   Accordingly, the employer could not be said to have discharged its duty to accommodate Stewart as an employee up to the point of undue hardship.  As a result, the Tribunal’s findings to the contrary were unreasonable.    

 

Regards,

 

Blair

 

Supreme Court Rejects Racial Profiling Claim Against Bombardier

Bombardier Inc. (“Bombardier”), the Montreal based aerospace company, operates two aerospace training centers – one in Montreal and the other in Dallas, Texas - at which pilots are trained on the types of aircraft produced by Bombardier.  Bombardier holds a training certificate from the US Federal Aviation Administration under which it is authorized to provide the necessary training to pilots holding US licenses. 

 

Almost immediately after the terrorist attacks of September 11, 2001, the United States implemented enhanced security measures.  Such measures included enacting, in November of 2001, the Aviation and Transportation Security Act (the “Act”).  The Act required that any organization (including Bombardier) wishing to provide pilot training to an individual who was not a US citizen, submit the individual’s name to US authorities for security screening:  Screening of Aliens and Other Designated Individuals Seeking Flight Training.  The security training was carried out by the US Department of Justice (“DOJ”) until the end of September 2004.  At that time, the United States passed even stricter security screening requirements and transferred control over screening to the Department of Homeland Security.

 

Canada did not adopt similar measures with respect to the training of pilots holding Canadian licenses.

 

The plaintiff in this case, Javed Latif (“Latif”), was a Canadian citizen but was born in Pakistan.  Latif had been flying airplanes since 1964.  He had held a US pilot’s license since 1991 and a Canadian pilot’s license since 2004.  He had an unblemished career record and had taken many training courses from Bombardier. 

 

In 2003, Latif was offered employment flying a Boeing 737 under his US license.  He registered for training and in October of 2003 the DOJ issued him a security clearance.  He took his training in the US and was certified in December of 2003.  Unfortunately, the job opportunity fell through.

 

In January of 2004, at a time when he was unemployed, Latif accepted a friend’s offer to go to Pakistan to participate in a real estate project.  In March of 2004, while he was still in Pakistan, he received an offer from a Canadian company to pilot a Bombardier aircraft. 

 

Latif initially registered for training on this new aircraft under his US license at Bombardier’s Dallas training center.  Because he was in Pakistan there was a delay so that Latif, then asked the Canadian company to register him for training under his Canadian license.

 

In April of 2004, the Canadian company informed Latif that Bombardier had received an unfavourable reply to his security screening request from the US.  No explanation for the refusal was provided at that time.  Latif then checked with Bombardier who also refused to provide him with training under his Canadian license based solely on the fact that DOJ had not issued Latif a security clearance. 

 

When Latif wrote to the US authorities, he was advised that:  “The denial decision was made after extensive analysis of the data received.  This process is in place to protect the national security of the US.  There is no appeals process for non-US citizens.”   

 

Latif filed a discrimination complaint against Bombardier with Quebec’s Commission des droits de la personne et des droits de la jeunesse (“Commission”).  After investigating, the Commission initiated proceedings in the Quebec Human Rights Tribunal (“Tribunal”).  At the Tribunal, the Commission alleged, among other things, that Bombardier “had impaired Latif’s right to avail himself of services ordinarily offered to the public and his right to the safeguard of his dignity and reputation without discrimination based on ethnic or national origin, contrary to sections 4, 10 and 12 of the Quebec Charter of human right and freedoms” (“Charter”). 

 

The Tribunal ordered Bombardier to pay damages to Latif.  It also ordered Bombardier to cease applying or considering the standards and decisions of the US authorities in national security matters when dealing with applications for the training of pilots under Canadian pilot licenses. 

 

The Quebec government appealed to the Quebec Court of Appeal which set aside the Tribunal’s decision on the basis that the Tribunal could not find that Bombardier had discriminated against Latif without proof that the US authorities’ decision was itself based on a ground that was prohibited under the Charter. 

 

Latif’s appeal to the Supreme Court of Canada was dismissed.

 

In dismissing the appeal, the Supreme Court agreed with the Court of Appeal that Latif could not prove on the balance of probabilities that the US authorities’ refusal to issue him a security clearance was based on a prohibited ground of discrimination under the Charter.  The SCC held that the Commission had not adduced sufficient evidence – either direct or circumstantial – to show that Latif’s ethnic or national origin had played any role in the US authorities’ unfavourable reply to his security screening request.  The Supreme Court held that it could not be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group was necessarily based on a prohibited ground under the Charter.  It held that this, in practice, would amount to reversing the burden of proof in discrimination cases.  The Supreme Court held that evidence of discrimination, even if it is circumstantial, must be tangibly related to the impugned decision or conduct. 

 

As for the process, the SCC held that an application with respect to a complaint under the Charter involves a two-step process that successively imposes separate burdens of proof on the plaintiff and the defendant.  At the first step, the Charter requires that the plaintiff prove a distinction or exclusion based on one of the grounds listed in the first paragraph of the Charter which has the effect of nullifying or impairing the right to full and equal recognition in exercise of a human right or freedom.  If the elements comprising the first step are established, then there is “prima facie discrimination”.  At the second step, the defendant (Bombardier) can seek to justify his or her decision or conduct on the basis of the exemptions that are provided for in the applicable human rights legislation or developed by the courts.    

 

The Court emphasized however, that the evidence of discrimination must be adduced on the standard of proof that normally applies in civil law cases, namely proof on a balance of probabilities.

 

This case is indexed as Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. 2015 SCC 39

Regards,

Blair

Mandatory Retirement for Law Firm Partners Not Discriminatory

John Michael McCormick became an equity partner at Fasken Martineau DuMoulin LLP (“Faskens”) in 1979.  In the 1980s the equity partners of Faskens voted to adopt a provision in their partnership agreement whereby equity partners were required to retire and divest their ownership shares in the partnership at the end of the year in which they turn 65.  In 2009, when he was 64, Mr. McCormick brought a claim before the British Columbia Human Rights Tribunal (“Tribunal”) alleging that the provision in the partnership agreement constituted age discrimination contrary to the British Columbia Human Rights Code (“Code”).

Faskens applied to have the claim dismissed on the grounds that the complaint was not within the jurisdiction of the Tribunal and that there was no reasonable prospect that that it would succeed.  Faskens argued that McCormick, as an equity partner, was not in the type of workplace relationship covered by the Code. 

The Tribunal  concluded that there was an employment relationship and concluded that Faskens had discriminated against McCormick.  Faskens' application for judicial review was dismissed by the British Columbia Supreme Court.  However, the British Columbia Court of Appeal allowed Faskens’ appeal, concluding that McCormick, as a partner, was not in an employment relationship with Faskens pursuant to the provisions of the Code. 

McCormick ‘s further appeal to the Supreme Court of Canada was dismissed.

The Supreme Court, with reasons written by Justice Abella, unanimously held that the Code was a quasi-constitutional legislation which should be “generously” interpreted to permit it to achieve its broad public purposes.  Those purposes include the prevention of arbitrary disadvantage or exclusion based on enumerated grounds so that individuals deemed to be vulnerable by virtue of a group characteristic can be protected from discrimination.  The Code achieves these purposes by prohibiting discrimination in a context such as employment. 

Deciding who is in an employment relationship for the purposes of the Code means examining the “two synergetic” aspects in the relationship:    control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of the worker.  The test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations.  The more the work life of individuals is controlled, the greater their dependency and, consequently their economic, social and psychological vulnerability in the workplace. 

Control and dependency are a function of whether the worker receives immediate direction from or is effected by the decision of others and also whether he or she has the ability to influence decisions which critically affect his or her working life.    Ultimately, the key is the degree of control and the extent to which the worker is subject and subordinate to someone else’s decision-making over working conditions and remuneration. 

Applying the control/dependency test to this case, Justice Abella found that in addition to the right to participate in the management of the partnership, McCormick benefited from other control mechanisms, including the right to vote for and stand for election to the firm's board; the duty that the other partners owed him to render accounts; the right not to be subject to discipline or dismissal; the right on leaving the firm to his share of Faskens' capital account; and the protection that he could only be expelled from the partnership by a special resolution passed by a meeting of all equity partners and a regional resolution in his region.     

The court found that as an equity partner and based on his ownership sharing of profits and losses and the right to participate in management, McCormick was part of the group that controlled the partnership, not a person vulnerable to its control and for over 30 years had benefited financially from the retirement of other partners.  McCormick was not ever in a subordinate relationship with the other equity partners.

Interestingly, the court held that it is not to say that a partner in a firm can never be an employee under the Code but in the absence of any genuine control of McCormick in the significant decisions effecting the workplace, in this case there was no employment relationship between him and Faskens under the provisions of the Code.  Accordingly, the court found that the Tribunal had no jurisdiction over McCormic’s relationship with Faskens.  

Regards,

Blair

Ontario Court of Appeal Slams Law Association for Racial Profiling

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.

Regards,

Blair

Hate Speech Law Upheld by Supreme Court

In a 6 - 0 decision, the Supreme Court of Canada upheld a ruling by the Saskatchewan Human Rights Commission ("Commission") finding that anti-gay flyers that had been distributed by William Whatcott, contravened section 14 of the Saskatchewan Human Rights Code ("Code") and constituted "hate speech". However, the court also found that the words  "ridicules, belittles or otherwise affronts the dignity of" contained in part of the hate speech provisions of the Code, were not rationally connected to legislative purpose of the addressing systemic discrimination of protected groups, nor tailored to minimally impair freedom of religion and should be struck from the Code.

Whatcott is a born-again Christian and an anti-gay activist living in Saskatchewan.  Whatcott published and distributed four flyers which the Commission found promoted hatred against individuals on the basis of their sexual orientation. Two of the flyers were entitled "Keep Homosexuality Out Of Saskatoon's Public Schools!" and "Sodomites In Our Public Schools". The other two flyers were identical to one another and contained a reprint of a page of a classified ad to which Whatcott added handwritten comments, "Men Seeking Boys".

After a hearing, the Commission held that the fliers were publications that contravened section 14 of the Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation. The Commission also held that section 14 of the Code was a reasonable restriction on Whatcott's rights to freedom of religion and expression guaranteed by sections 2(a) and 2(b) of the Charter of Rights and Freedoms.

On an appeal from Saskatchewan Court of Appeal, the Supreme Court of Canada held that:

1.  First, courts must apply hate speech prohibitions objectively and ask whether a reasonable person, aware of the context and circumstances would view the expression as exposing the protected group to hatred;

2.  Second, the term "hatred" must be interpreted as being restricted to those extreme manifestations of the emotion described by the words "detestation" and "vilification"; and

3.  Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objects to reduce or eliminate discrimination.

In upholding the ruling, the Supreme Court acknowledged that while the prohibition against hate speech in the Code infringes the freedom of expression guaranteed under section 2(b) of the Charter, the objective of the hate speech prohibition is "pressing and substantial". Hate speech is an effort to marginalize individuals based on their membership in a group and can have a societal impact. Hate speech lays the ground work for later, broad attacks on vulnerable groups.

The court also found that the section of the Code was proportionate to its objective. It only prohibited public communication of hate speech, did not restrict hateful expression in private communications between individuals.

However, the court struck down the words, "ridicules, belittles or otherwise affronts the dignity of" in the section of the Code and found that they were not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups and unjustifiably infringed on freedom of expression.

On balance, the court found that the benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which by its nature does little to promote the values underlying freedom of expression.

Accordingly, the court concluded that the first two flyers constituted hate speech and that it was not unreasonable for the Commission to conclude that the content of the flyers were more likely than not to expose homosexuals to hatred.

With respect to the second two flyers, the court held that it was not reasonable to find that it would expose persons of same sex orientation to detestation and vilification. The handwritten expressions, while offensive, did not demonstrate the hatred required by the publication.

Regards,

Blair

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.
Facts
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.

Regards,

Blair