Friday, 23 March 2012

Assuming makes a What out of You and Me?

In Hans Christian Andersen’s tale, “The Emperor’s New Clothes”, the Emperor was duped, his subjects were duped, and the only person willing to give an honest appraisal was a little child. “He isn’t wearing anything at all”, the child said. Sometimes it takes an outside opinion to fracture the edifice of familiar but unfounded patterns of thought.

This is precisely what a three-member panel of the Ontario Divisional Court has done in Pieters v. Peel Law Association.

The Peel Law Association manages a library and lounge in the Brampton Courthouse. Only lawyers, articling students, and law students are permitted to access the facility. Selwyn Pieters, a black Toronto lawyer, was asked by librarian Melissa Firth to provide identification demonstrating that he was a lawyer. Pieters felt offended, accused Firth of “racial profiling”, and complained to the Ontario Human Rights Commission, asking for $25,000 because his feelings were hurt.

Eric Whist, of the Human Rights Tribunal of Ontario, decided that Firth had discriminated against Pieters and awarded him $2,000 for injury to “dignity, feelings and self-respect”. In the decision, Whist held that Pieters had proved a prima facie case of discrimination and placed the onus on Firth to demonstrate that her actions were not motivated by race or colour. But Whist was too quick to find discrimination where there was none.

Since the 1985 Supreme Court of Canada (SCC) decision in Ont. Human Rights Comm. v. Simpsons-Sears, a prima facie case has meant “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.”

The resulting structure of a human rights complaint is simple. The complainant must convince the decision-maker that there is enough evidence to establish that he has suffered from a discriminatory act. After this, the respondent bears the onus of convincing the decision-maker that the impugned act was not discriminatory. But on a careful read, Simpson-Sears is ambiguous – it lacks precision – regarding what is required to convince a decision-maker of a prima facie case.

In the 2007 McGill University Health Centre decision, the SCC cautioned that “not every distinction is discriminatory”. Justice Abella reasoned that a complainant will not be successful merely because he belongs to a protected group and he was subjected to some act that negatively impacted him. There must be some link, or nexus, between membership in a protected group and the allegedly discriminatory act.

It is the nature of this link, or nexus, which was addressed by the court in Peiters v. Peel Law Association, specifically whether this nexus is one of correlation or causation. In its unanimous decision, the court held that a complainant must do more than identify himself as a member in a protected group and point to an act that negatively impacted upon him. A complainant must establish a causal link. In other words, correlation is insufficient to prove a prima facie case of discrimination.

This decision gives lawyers a precise and practical statement of the law – discrimination cannot be assumed, it must be proved. There must be “a causal link or nexus between the distinction that imposes a disadvantage and a prohibited ground”. Finding otherwise would effectively immunize individuals belonging to protected groups from any acts that negatively impact upon their interests.

If Pieters is right – and it surely is – there may be a good number of human rights decisions that are wrongly decided. The mere correlation of membership in a protected group and an allegedly discriminatory act should not be sufficient to establish a prima facie case.

This piece was originally published by Troy Media in March 2012.

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