The Ontario Divisional Court quashed the decision of the Human Rights Tribunal that a librarian discriminated against the black complainants by asking them in a lawyers’ lounge for the exclusive use by lawyers and law students to confirm they were lawyers. The Tribunal erred in finding a prima facie case of discrimination. There must be some link, or nexus, between membership in a protected group and the allegedly discriminatory act. A complainant must do more than identify himself as a member of a protected group and point to an act that negatively impacted on him. A complainant must establish a causal link. In this case, there was no evidence of distinction or differential treatment or that such treatment was motivated by race or colour. By failing to require complainants to satisfy the nexus requirement, the Tribunal erred by reversing the burden of proof and placed an impossible onus on the applicants to disprove discrimination.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights – Discrimination – Race – Judicial review – Evidence – Standard of review – Reasonableness simpliciter

Peel Law Assn. v. Pieters, [2012] O.J. No. 684, 2012 ONSC 1048, Ontario Superior Court of Justice, February 13, 2012, S. Chapnik, P.B. Hockin and A. Hoy JJ.

The applicants, Peel Law Association (“PLA”) and a librarian employee, sought judicial review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) finding that the applicants had discriminated against the respondents in the provision of services, goods and facilities on the basis of race and colour, contrary to s.1 of the Human Rights Code (the “Code”). The Tribunal ordered the applicants to pay $2,000.00 to each of the respondents for violation of their inherent right to be free from discrimination and injury to their dignity, feelings and self-respect.

PLA operates a lawyers’ lounge and a library at the Brampton Courthouse which is restricted to lawyers and law students. A sign posted on the premisis states “lawyers only” and the applicant librarian has primary responsibility for ensuring compliance with the policy. On May 18, 2008, the applicant approached the respondents and asked them to produce identification. The respondents accused her of “racial profiling”.

The Tribunal accepted that the applicant librarian routinely, at least 8-12 times per week, requests identification from individuals and asks those who are not lawyers or law students to leave the lounge. The Tribunal also concluded that race was a factor in the applicant librarian’s decision to approach the respondents that day. In considering the evidence and weighing its credibility, the Tribunal noted that the respondents were the only ones in the lawyers’ lounge that were asked to identify themselves and the librarian approached them in a “blunt and demanding manner”. For the Tribunal, these findings were sufficient to establish a prima facie case of discrimination, shifting the burden onto applicants to prove a credible and rational explanation for why the respondents were approached. Finding that the applicants had not discharged the burden, the Tribunal found a violation of s.1 of the Code.

The standard of review on judicial review is reasonableness. Within this standard, “the highest degree of deference should be awarded to the Tribunal in respect of determination of facts and the interpretation of human rights law”. A complainant in a human rights complaint bears the burden of proving a prima facie case of discrimination for:

1. a distinction or differential treatment;
2. arbitrariness based on a prohibited ground;
3. a disadvantage; and
4. a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.

It is only when a prima facie case of discrimination has been demonstrated that the burden shifts to the respondent to provide a non-discriminatory explanation for the conduct.

In this case, the court concluded that the Tribunal’s finding that there was a prima facie case of discrimination, was unreasonable. The basis for the Tribunal’s determination of a prima facie case of discrimination rested on the findings that the respondents and their law student were the only black men in the lounge, the only persons the librarian chose for question, no one else in the lounge was questioned, that she interrupted her planned trip to the robing room to question the respondents and did so in an “aggressive and demanding manner”. However, these conclusions appeared to be inconsistent with findings of fact made by the Tribunal.

In the circumstances, there was no evidentiary basis to conclude that the respondents had been subjected to differential treatment and the undisputed evidence was that the applicant librarian’s duties included asking for identification. There were other situations where her requests to non-racialized persons had become contentious, and she was acting on this occasion in the context of these duties. Moreover, even where there is a distinction or differential treatment, the complainants must establish a causal nexus between the distinction and the disadvantage suffered. In this case, the Tribunal erred in assuming the nexus from the findings of “differential treatment” and thereby revised the onus, placing the onus on the applicant to provide an explanation for why she treated the respondents differently than others in the lounge. By failing to require the complainants to satisfy the nexus requirement, the Tribunal improperly reversed the burden of proof placing an impossible onus on the applicants to disprove discrimination.

The application was allowed and the decision quashed, since it did not fall within the range of possible acceptable outcomes defensible in fact and law.

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