In a recent case, Peel Law Association v. Pieters, the Divisional Court overturned a decision of the Human Rights Tribunal finding that the complainants had not established a prima facie case of discrimination.
This decision comes on the heels of the Divisional Court’s decision in Audmax Inc. v. Ontario Human Rights Tribunal where the court found that the Tribunal must base a finding of discrimination on a solid factual foundation (click here to read our previous Stringer Update on the Audmax decision).
The decision of the Tribunal pertained to a discrimination complaint by lawyers who were using the Peel Law Association’s lawyers only library and lounge who identify themselves as black. The librarian approached the complainants and asked for identification. The complainants argued that this was racial profiling.
The court provided guidance as to what a complainant must satisfy in order to establish a prima facie case of discrimination:
- A distinction or differential treatment
- Arbitrariness based on a prohibited ground;
- A disadvantage; and
- A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.
The court emphasized that it is only when a prima facie case of discrimination has been demonstrated that the burden shifts to the respondent.
The court found that the complainant had not established differential treatment. In her evidence, the librarian indicated that she routinely asked individuals for identification and the complainants happened to be the first people she encountered when she entered the library. The Tribunal had relied on the fact that she was on her way to the robing room when she stopped to question the complainants and that she was aggressive and demanding. The court held that this was insufficient to establish differential treatment. Even if she had been aggressive, in her evidence she indicated that she had engaged in arguments in the past with other individuals whose identification she requested.
The court was critical of the Tribunal for essentially reversing the onus of proof. Even if differential treatment had been established, the complainant still needs to prove that there was a nexus between the differential treatment and a prohibited ground. The Tribunal assumed a nexus with the complainants’ race from its finding of differential treatment. Membership in a group by itself does not entitle a complainant to a human rights remedy. There must be a link between membership in the group and the disadvantage or arbitrary conduct.
This decision is encouraging for employers. The court appears to be signaling to the Tribunal that the threshold test for a prima facie case of discrimination should be applied more stringently. The onus is on the complainant to prove differential treatment and a nexus between the treatment and a prohibited ground. It is not until both of these aspects are established that the burden falls on the respondent. This should also make it easier for employers to defend against a human rights claim. As the court found in this case, where a prima facie case is based on insufficient evidence, the burden shifts unfairly to the respondent to disprove the alleged discrimination. Applying the prima facie test more rigorously may lead to fewer cases making it past this threshold test and should give employers a better indication of the case to be met if a prima facie case is indeed found.
