|
Human Rights (Fed) - Discrimination - Compound. Jagadeesh v. Canadian Imperial Bank of Commerce ['compound discrimination']
In Jagadeesh v. Canadian Imperial Bank of Commerce (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of a Canadian Human Rights Commission's dismissal of the appellant's complaint.
The court considers procedural fairness, here on a complainant's argument that the Commission and it's investigation failed to consider their 'compound discrimination' - both disability and sexual orientation:iv. The Failure to Consider Compound Discrimination
[75] Mr. Jagadeesh also says that the Commission treated him unfairly, as its investigation was insufficiently thorough in a number of respects. In particular, he says that both the investigator and the Commissioners failed to consider the compounding effect that the multiple grounds of discrimination asserted in his complaint had for the treatment he encountered at the Bank.
[76] Citing this Court’s decision in Turner v. Canada (Attorney General), 2012 FCA 159, Mr. Jagadeesh states that the Commission erred by analyzing whether there was discrimination on the basis of his disability and on the basis of his sexual orientation separately, without considering what was in fact compound discrimination.
[77] When we asked Mr. Jagadeesh whether he had raised the issue of compound discrimination before the Commission, he pointed to one paragraph in his post-investigation submissions that states "“[s]ections of [the] CHRA [that] apply to my case: 7, 10, and 14. (Discrimination based on: disability, sexual orientation, the combination of both, & harassment – including sexual harassment) …”" [emphasis added].
[78] Mr. Jagadeesh also pointed to section 3.1 of the CHRA, which states "“[f]or greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds”" [my emphasis].
[79] In my view, this was not sufficient to put the issue of compound discrimination in play before the Commission.
[80] As this Court observed in Turner, the concept of intersecting grounds of discrimination (also known as compound discrimination) is based on the recognition that where multiple grounds of discrimination are present, their combined effect may be more than the sum of their individual effects. It recognizes that analyzing multiple grounds separately − as if they existed in discrete silos – can sometimes ignore the compounding effect that intersecting grounds can have.
[81] In other words, there are cases where a finding of discrimination may not be justified when each ground of discrimination is considered by itself, but where a picture of discrimination may emerge when the grounds are considered together: Turner, above at para. 48; Djubok v. Canada (Minister of Citizenship and Immigration), 2014 FC 497, at para.18.
[82] In Turner, the issue of the compounding effect of the multiple grounds of discrimination asserted was squarely raised by the complainant and was argued before the Tribunal. However, the issue was not addressed in the Tribunal’s decision, which resulted in the decision being set aside.
[83] In contrast, Mr. Jagadeesh’s human rights complaint makes no mention of any compounding effect arising out of the grounds of discrimination asserted in his case, nor does the issue appear to have been raised in the course of the Commission investigation. The brief reference to "“disability, sexual orientation, the combination of both”" in his post-investigation submissions was insufficient to trigger any duty on the Commission to pursue the issue of compound discrimination.
[84] Nor does the existence of section 3.1 in the CHRA assist Mr. Jagadeesh. It simply recognizes that discriminatory practices include those based on one or more prohibited grounds of discrimination, as well as those arising out of the combined effect of multiple prohibited grounds. It says nothing about the potential existence of compound discrimination in Mr. Jagadeesh’s case.
[85] Mr. Jagadeesh has also not explained how the two grounds of discrimination identified in his human rights complaint intersected to result in compound discrimination in his case.
[86] Consequently, Mr. Jagadeesh has not persuaded me that the Commission and/or the Federal Court erred in failing to consider the potential existence of compound discrimination in this case.
|
