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Human Rights (Ont) - Discrimination - Evidence. Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General)
In Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General) (Div Court, 2024) the Divisional Court allows an employee's association JR of an arbitrator's decision relating to an alleged racially-motivated 'shove' in the workplace.
Here the court considers evidence of human rights discrimination:[50] With respect, direct evidence – such as the words or conduct mandated by the arbitrator – is not required. Discrimination will more often be proven by circumstantial evidence and inference: Pieters, at paras. 111-112.
[51] As for the arbitrator’s treatment of Dr. Kawakami’s evidence, the Court of Appeal has recognized that the indicators of racial profiling recognized in the literature by experts and in the case law, can assist a trier of fact in determining what inferences should or should not be drawn: Peart v. Peel Regional Police Services (2006), 2006 CanLII 37566 (ON CA), 217 O.A.C. 269 (C.A.), at para. 96, leave to appeal refused, [2007] S.C.C.A. No. 10.
[52] Evidence of discrimination – even if it is circumstantial – must be “tangibly related” to the impugned decision or conduct: Bombardier, at para. 88. Dr. Kawakami provided evidence about the indicia of unconscious bias that, in a number of respects, correspond to the arbitrator’s own findings. For example, in her report, Dr. Kawakami noted that “White perceivers may be more likely to attend to and interpret behaviour by Blacks as criminal” and “it is more plausible that a White perceiver will identify with a White compared to a Black person as vulnerable to crimes and as a victim of violence than vice versa.” The arbitrator found:. The evidence of the grievor’s statement ought to have been given some consideration by the investigator; “had he done so, he surely might have thought it implausible that the Grievor would cook up a scheme on the spot to make a false claim in order to seek compensation.” (Decision, at para. 198)
. The investigator’s finding that the grievor made up the complaint for compensation was “particularly harsh” and “not based on any actual evidence.” (Decision, at para. 196)
. The investigator was “not tasked with investigating the motives behind the Grievor’s complaint and yet for some reason took it upon himself to draw such conclusions.” (Decision, at para. 196)
. “The suggestion that the Grievor was making this complaint in order to get money was never put to the Grievor and was not suggested by Ms. X.” (Decision, at para. 196).
. “Had the Grievor been given an opportunity to respond to the Investigator’s claim ... [h]e would have realized that the basis for his suspicion was illusory. The Investigator’s failure to ask the Grievor to respond to the Investigator’s own theory was improper and deeply unfair.” (Decision, at para. 196) [53] The arbitrator erred in discounting Dr. Kawakami’s evidence and by looking for “words or conduct” that “lead to the conclusion that such bias was present and affected conduct.” As a result of this error, the arbitrator failed to consider the correlation between his own findings and Dr. Kawakami’s evidence about the indicia of unconscious bias and failed to consider whether AMAPCEO had met its initial evidential burden based on the evidence in the record, including the circumstantial evidence.
[54] Finally, in the face of the respondent’s failure to adduce any evidence by way of explanation for the investigator’s conduct, it was an error for the arbitrator to provide his own explanations. The arbitrator speculated that the defects in the investigator’s report “likely stem[ed] from an early conclusion that the Grievor’s account was inaccurate or false and the failure to consider the Grievor properly.” The arbitrator further speculated that the investigator came to a conclusion about the Grievor’s claim quickly and then “wrote the report with that conclusion in mind” and in a way “meant to justify the Investigator’s early conclusion without a fair consideration of the evidence.” (Decision, at para. 206)
[55] I make two observations. First, the arbitrator’s explanations are speculative because they were not adduced in evidence through either the investigator or a member of his team. Second, I agree with AMAPCEO that the arbitrator, by supplying his own explanations for the investigator’s conduct, effectively reversed the established approach to adjudicating discrimination claims. Rather than calling upon the respondent to explain and rebut the evidence supporting a prima facie case of unconscious bias, the arbitrator placed the burden on AMAPCEO to disprove the existence of possible non-racist explanations. The arbitrator erred in doing so.
[56] For these reasons, I conclude the arbitrator’s decision dismissing the claim of discrimination was incorrect and must be set aside. Even if the standard of review is reasonableness, the arbitrator’s decision cannot be justified under the “well-settled” law dealing with claims for discrimination involving the Human Rights Code. . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal considers the shifting burden of proof in the discrimination evidence analysis:(c) The tribunal did not erroneously shift the burden of proof to Imperial during the discrimination analysis
[219] Imperial argues that the tribunal erroneously shifted the burden to it to prove that it did not discriminate against the appellant. Imperial submits that after it produced evidence from Mr. Blysniuk that the decision to withdraw the appellant’s job offer was motivated solely by his lies about his status, the appellant then produced no evidence to establish that Mr. Blysniuk’s evidence was false or pretextual. Imperial argues that having rebutted the appellant’s prima facie claim of discrimination, the burden of proof remained on the appellant to prove on a balance of probabilities that his dishonesty was not the sole reason that the job offer was withdrawn.
[220] I reject this argument. The tribunal discussed the burden of proof at the outset of its discrimination analysis, correctly stating that in human rights cases, the applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. The initial onus is on the applicant to establish a prima facie case of discrimination on a prohibited ground on a balance of probabilities. If the applicant does so, an evidential burden shifts to the respondent to establish that there is an applicable statutory defence, or that there is a non-discriminatory explanation that provides the sole basis for the impugned treatment. If the respondent meets the onus to rebut the prima facie case of discrimination, then the onus shifts again to the applicant to establish that the respondent’s explanation is erroneous or is a pretext for discrimination. The tribunal correctly recognized that while the evidential burden may shift to the respondent during the analysis, the ultimate onus of proving discrimination remains on the appellant. I note that as recently as Midwives, this court found a similar application of the burden of proof to be reasonable: Midwives, at para. 149.
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[222] I do not agree that this demonstrates an improper shifting of the burden of proof. The tribunal followed the established law regarding the burden of proof in discrimination claims. The tribunal found a prima facie case of discrimination on the basis of citizenship. Only then did the tribunal shift the burden to Imperial to show a non-discriminatory basis was the sole motivating factor for withdrawing the appellant’s job offer – in other words, that the decision was not tainted by discrimination on the basis of citizenship. This is clear throughout the tribunal’s reasons, including in the following passage, situated after the tribunal found that the appellant had established a prima facie case of discrimination on the basis of citizenship:In the Tribunal’s view, given that a prima facie case has been established [Imperial] was required to provide a response to the allegation of discrimination by way of a statutory defence and/or credible non-discriminatory explanation for the impugned treatment. [Emphasis in original.] . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal held that when there were two reasons for the adverse effect, but only one of them was discriminatory, HRC discrimination was still found:[217] The tribunal held that a discriminatory ground (citizenship) was a factor in the decision to withdraw the job offer. The tribunal further held that the fact that a non-discriminatory factor (the lies) may have also played a role did not insulate Imperial’s conduct from being discriminatory. As I have outlined above, only if the conduct alleged to be discriminatory was solely motivated by non-discriminatory factors can it rebut a prima facie case of discrimination.
[218] The tribunal’s finding that the appellant’s dishonesty was not the sole factor that motivated Imperial to withdraw the job offer was reasonable on the record before it.
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