An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Sunday, 28 July 2013

Intention Not a Requirement for Discrimination

"But I didn't mean to." Those words, often offered in defence of an allegation of discrimination, beg a frequent question in human rights law: is intent a requirement for an infringement of someone's rights? That is to say, must someone intend to infringe someone's right before a violation can happen?

As recently affirmed by the Court of Appeal for Ontario in the case of Peel Law Association v. Pieters, 2013 ONCA 396, the answer is no.

Facts


In Pieters the facts as found by Vice-Chair Whist of the Human Rights Tribunal were as follows (as summarized in the decision of the Court of Appeal):
[2] On May 16, 2008, Mr. Pieters and Mr. Noble were counsel in a proceeding at the Brampton Courthouse. They were not gowned. Both of the appellants, and the articling student who was accompanying them, are black. Both the first appellant and the articling student have dreadlocked hair.
[3] During a break, they went to the lawyer’s lounge operated by the respondent, Peel Law Association (“PLA”), with some of the other lawyers involved in the proceeding. According to PLA policy, only lawyers and law students are permitted to use the lounge, robing room, and library. Signs to indicate that are posted. The personal respondent, Ms. Firth, is the library’s administrator with primary responsibility for enforcing this policy. She approached the appellants and the articling student and asked them to produce identification to show they were lawyers or law students. She did not ask to see the identification of anyone else in the lounge.
[4] The appellants brought applications to the HRTO alleging an infringement of their rights under s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) to equal treatment with respect to services, goods and facilities without discrimination because of race and colour. Vice-Chair Whist was appointed to hear the case. The Vice-Chair found their rights had been infringed and awarded each appellant $2000 for injury to his dignity.

Divisional Court


On appeal to the Divisional Court, the decision of the Human Rights Tribunal was quashed. According to that court, the applicants had failed to demonstrate "a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered."

That is to say, the Divisional Court found that the librarian had not intended to infringe the applicant's rights and therefore the Human Rights Tribunal had erred in its decision.

Court of Appeal for Ontario


On further appeal to the Court of Appeal for Ontario, the court reversed the Divisional Court's ruling upholding the original finding.

On the issue of the requirement for a "causal nexus," Justice Juriansz, writing on behalf of the court, held that:
[59] While the word “nexus” is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a “factor” in the adverse treatment.
[60] I do not think it acceptable, however, to attach the modifier “causal” to “nexus”. Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court’s requirement of a “causal nexus” or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause. [Emphasis added.]
Justice Juriansz went on to observe that the "traditional definition" of when a prima facie case for discrimination will be established was recently affirmed by the Supreme Court of Canada in the case of Moore v. British Columbia (Education), 2012 SCC 61, summarized in this blog in the post School District Learns Lesson in Accommodation:
...to demonstrate prima facie discrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.
What is to be noted is that nowhere within that three-part test is intention required. At its highest, the applicant must show that the protected characteristic was a "factor" in the adverse impact; but it need not be a causal factor.

The decision goes on to discuss some of the challenges of proving that the protected characteristic was a factor in the adverse impact. As Justice Juriansz noted:
[72] ...The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.
[73] In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
The Pieters decision turned on numerous pieces of evidence to show that a prohibited characteristic of discrimination, in this case race, was a factor in the decision to ask for identification. Perhaps most damming for the Peel Law Association was that the librarian only asked for the identification of the black lawyers - not any of the other four individuals in the room, one of whom it was later found was not actually a lawyer.

Commentary


The case is important for employment law in two ways. First, as Justice Juriansz noted, there will be cases where an applicant will not be hired for a position and an allegation will be made that race, sex, disability, or some other protected ground was a factor in the reasoning. Second, there will be occasions where an employee will be disciplined or perhaps have his or her employment terminated and again allegations of discrimination will be made.

As Pieters and Moore demonstrate (neither of which was an employment case) in human rights cases it is irrelevant if the motivating factor for a decision was the distinguishing characteristic; if the distinguishing characteristic was a factor, then a violation of the employee's human rights may have occurred.

Takeaways for Employees


The case is helpful for employees because it repeats the point that they need not show that their employer acted against them exclusively because of their distinguishing characteristics; the same would simply be too high a bar to get over.

Rather, employees need only show that the distinguishing characteristic was a factor in the adverse treatment.

If you an Ontario worker and you've suffered adverse treatment on account of your ace, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability (the factors listed in section 5 of the Ontario Human Rights Code ), it may be prudent to speak to an employment lawyer. The professional, experienced, and cost-effective employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers


This post should serve as a warning to employers to fastidiously maintain records about why decisions around discipline and termination are taken. Where no records are kept, it can become difficult to explain why the decision was taken and even more difficult to show that the distinguishing characteristic was not a factor in the adverse treatment.

If you are an Ontario employer and are considering imposing discipline, changing an employee's responsibilities, or terminating an employee's employment it may be prudent to seek professional legal advice before doing so.

The professional, experienced, and cost-effective employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.


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