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Human Rights (Ontario) - Discrimination - Adverse Effect. Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal considers direct versus adverse effect discrimination:(3) Direct versus adverse impact discrimination
[56] In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), the Supreme Court adopted a revised unified approach to employer defences under human rights legislation, no longer based on categorizing discrimination as direct or adverse impact (sometimes referred to as indirect). The court gave several reasons for this, including that the distinction is sometimes artificial, difficult to apply, and manipulable; that it is difficult to justify different remedies depending on which category is applied to a discrimination claim; that it can tend to legitimate systemic discrimination; and that it is inconsistent with the purposes of human rights legislation: at paras. 25-53.
[57] However, the distinction between direct and adverse impact discrimination continues to have relevance in Ontario because the BFOR defence in s. 11 of the Code is only available where discrimination is indirect:[3] Entrop v. Imperial Oil Limited (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (C.A.), at paras. 67-69.
[58] Although the Supreme Court in Meiorin signalled a move away from categorizing discrimination as direct or adverse impact, the concepts of direct and adverse impact discrimination have relevance to this appeal because one of the issues on which the majority of the Divisional Court found the tribunal decision to be unreasonable was the finding that Imperial’s policy constituted direct discrimination.
[59] The distinction between direct and adverse impact discrimination has its origin in Canadian law in Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”). In O’Malley, McIntyre J., writing for the court, described the distinction as follows, at p. 551:A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.” There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. For essentially the same reasons that led to the conclusion that an intent to discriminate was not required as an element of discrimination contravening the Code, I am of the opinion that this Court may consider adverse effect discrimination as described in these reasons a contradiction of the terms of the Code. An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply. [Emphasis added.] [60] Thus, direct discrimination exists where a rule or policy discriminates against a protected group on its face. Adverse impact discrimination exists where a rule or policy is neutral on its face, but adversely affects members of a protected group (i.e., on the basis of a prohibited ground, such as race, sex, or creed).
[61] As is clear from the passage from O’Malley, the concern which motivated recognition of adverse impact discrimination is that a neutrally expressed rule or policy may affect particular groups protected from discrimination under human rights legislation in a discriminatory way. The fact the discrimination is not expressly intended by a neutral rule or policy does not make its effects any less real for the affected group: see also Meiorin, at para. 25; Entrop, at para. 71.
[62] More recent articulations of the distinction between direct and indirect discrimination have maintained the approach from O’Malley that discrimination is characterized as direct where a rule or policy is discriminatory on its face, and adverse impact where a rule or policy is neutral on its face but discriminatory in its effects on a particular group based on a prohibited ground: Entrop, at para. 65; Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at paras. 30-39; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, at para. 15 (“Grismer”); Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, at para. 24.
[63] The Supreme Court in Meiorin and this court in Entrop recognized that in some cases, characterizing the alleged discrimination as direct or adverse impact may be difficult: Meiorin, at para. 27; Entrop, at para. 70.
[64] In light of the direction in Meiorin signalling a move away from undue focus on whether discrimination was direct or adverse impact, but mindful of the language of s. 11(1) of the Code which makes a BFOR defence unavailable for cases of direct discrimination, this court held in Entrop, at para. 80, that the s. 11 defence should be unavailable only in cases which can be “neatly characterized” as direct discrimination. In other words, if there is doubt about whether discrimination should be characterized as direct or adverse impact in a particular case, it should be characterized as adverse impact, to allow a BFOR defence under s. 11 to be considered.
[65] I flag now an issue I return to below. The Supreme Court has held that the test to establish prima facie discrimination is the same whether the claim is of direct or adverse impact discrimination: Grismer, at paras. 18-19; Fraser, at para. 49.
[66] As a result, whether a discrimination claim is characterized as direct or adverse impact has one practical effect in Ontario – whether a BFOR defence under s. 11 is available. Where a BFOR defence is not in issue, the question of whether a claim of discrimination is properly characterized as direct or adverse impact has no practical effect. . Ontario (Health) v. Association of Ontario Midwives
In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal considered human rights systemic discrimination:[10] Adverse impact discrimination occurs when seemingly neutral rules, policies, procedures, systems, or structures have a disproportionate impact on disadvantaged groups: see Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at paras. 30-31. As Abella J. recognized in Fraser, an increased awareness of adverse impact discrimination has led to a shift away from a fault-based conception of discrimination towards an effects-based model. Identifying adverse impact discrimination involves critically examining systems and structures, recognizing that discrimination is “frequently a product of continuing to do things ‘the way they have always been done’”: Fraser, at para. 31, citing Fay Faraday, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020) 94 S.C.L.R. (2d) 301, at p. 310.
[11] In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, Dickson C.J. defined systemic discrimination, at p. 1139, as follows:[S]ystemic discrimination in an employment context is discrimination that results from the simple operation of established procedures … none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job”. [Citation omitted.] Therefore, in a claim of systemic discrimination, it can be difficult to identify one single rule, policy, or procedure that results in adverse impact discrimination. Often “there is no single identifiable ‘villain’, no single action identifiable as ‘discriminatory””: Fraser, at para. 35, citing Mary Eberts & Kim Stanton, “The Disappearance of the Four Equality Rights and Systemic Discrimination from Canadian Equality Jurisprudence” (2018) 38 N.J.C.L. 89, at p. 92. Rather, systemic discrimination may emerge from an “invisible structure, with its accompanying set of practices” or as a “complex web of seemingly neutral, systemic barriers”: Fraser, at para. 35, citing Eberts & Stanton, at p. 92; British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at para. 42.
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