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Human Rights (Ontario) - Discrimination - Prima Facie. 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 assesses the arbitrator's decision on prima facie discrimination:Analysis
Prima facie discrimination – the legal principles
[39] The test for prima facie discrimination was confirmed by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360. A complainant must show that: (i) they have a characteristic protected from discrimination; (ii) they experienced an adverse impact on account of the challenged norm; and (iii) the protected characteristic was a factor in the adverse impact: Moore, at para. 33. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice. If it cannot be justified, discrimination will be found to have occurred: Moore, at para. 33; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789, at para. 63.
[40] A prima facie case of discrimination is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”: Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at p. 588.
[41] In Imperial Oil Limited v. Haseeb, 2023 ONCA 364, 483 D.L.R. (4th) 228, the Court of Appeal for Ontario reviewed the burden of proof and the shifting evidential burdens in a claim for discrimination on a prohibited ground under the Human Rights Code. Describing the law as “well-settled”, the Court of Appeal explained:(i) The ultimate burden to prove a claim of discrimination on a prohibited ground is on the applicant: Imperial Oil, at para. 52; Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 (Div. Ct.), at paras. 144-51.
(ii) If the applicant establishes a prima facie case of discrimination on a prohibited ground, then the evidential burden shifts to the responding party to rebut that a prohibited ground of discrimination was a factor in the impugned conduct. If the responding party succeeds in rebutting the prima facie case, then the evidential burden shifts back to the applicant to prove that the respondent’s non-discriminatory explanation is pretextual: Imperial Oil, at para. 53; Peel Law Association v. Pieters, 2013 ONCA 396, at paras. 63-74.
(iii) The responding party must show that the non-discriminatory reason was the sole reason for the action. The presence of a non-discriminatory reason for the impugned conduct does not insulate the conduct from a finding of discrimination under the Human Rights Code if it is combined with one or more discriminatory reasons: Imperial Oil, at para. 54.
(iv) The shifting evidential burdens recognize that if there is a non-discriminatory explanation for the impugned conduct, the respondent is uniquely positioned to provide evidence on that issue, because it has to do with the respondent’s state of mind or motivation: Imperial Oil, at para. 55; Pieters, at paras. 70-73. [42] To elaborate on point (iv), the Court of Appeal explained in Pieters, at para. 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. [43] While the legal burden of proof remains with the complainant, “[r]elatively ‘little affirmative evidence’ is required before the inference of discrimination is permitted”: Pieters, at para. 73; Ontario (Minister of Health and Long-Term Care) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 146. The inference must only be more probable than not, and once there is evidence to support a prima facie case, the respondent faces a “tactical choice: explain or risk losing”: Pieters, at para. 73.
[44] Under the third branch of the analysis for a prima facie case of discrimination, all that is required is for the complainant to show there is a “connection between the adverse treatment and the ground of discrimination: Pieters, at para. 59. The connection does not need to be causal, and the connection between the adverse treatment and the prohibited ground can co-exist with other non-discriminatory factors: Imperial Oil, at para. 51; Pieters, at para. 60. The prohibited ground need not be the only reason for the adverse treatment, or even the predominant reason: Imperial Oil, at para. 51; Bombardier, at paras. 43-52. . Wu v. City of Toronto and Toronto Ombudsman
In Wu v. City of Toronto and Toronto Ombudsman (Div Court, 2023) the Divisional Court considers (and dismisses) two merged JR applications against several 'summary dismissal' HRTO decisions. The below quotes reflect a basic of HR discrimination law:[25] Wu submits that the provisions of the Code should be interpreted as guaranteeing a right to equal treatment with respect to government services, and that such guarantees should have been considered and applied by the Adjudicators separate from any right not to be discriminated against on protected grounds under the Code. He characterizes the alleged failure of the Adjudicators to do so as an error of law.
[26] Wu also argues that the Adjudicators erred by imposing a requirement upon him to show the existence of some factual basis to connect the alleged mistreatment and a protected ground under the Code before deciding the separate issue of whether his right to equal treatment had been violated. Accordingly, Wu argues that the Adjudicators’ application of the provisions of the Code are inconsistent with s. 15 of the Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 and is therefore an error in law.
[27] I agree with the submissions made on behalf of the Respondents that these submissions advanced by Wu demonstrate a misunderstanding of the fundamental requirements for establishing a complaint of discrimination under the Code as was set out in careful and detailed fashion in the reasons for the decisions under review. To establish and sustain a complaint of unlawful discrimination, a complainant must be able to establish a link between the treatment alleged and at least one enumerated protected under the Code. Wu was unable to do so. . Volpe v. Wong-Tam
In Volpe v. Wong-Tam (Ont CA, 2023) the Court of Appeal considered a plaintiff's appeal from a successful SLAPP defendant's dismissal motion [under CJA 137.1], brought in response to the defendants being sued for defamation and related torts for bringing an municipal motion to stop advertising with the appellant's newspaper.
In these quotes the court considers a challenge to the CJA SLAPP regime under s.93 of the Constitution (non-Charter) ['Legislation respecting Education']:Section 93 of the Constitution Act, 1867
[40] The appellants also advanced a cluster of arguments related to the proposition that their speech could not be accurately characterized as discriminatory because it was an articulation of Roman Catholic doctrine, which is protected by s. 93 of the Constitution Act, 1867. This argument was also rejected at the conclusion of the appellants’ oral submissions.
[41] There is no merit to this argument. Section 93 entrenches the rights of Roman Catholic separate school supporters to Roman Catholic separate schools that hold and teach Roman Catholic doctrine, and to have their children receive a Roman Catholic education based on that doctrine: Reference re Bill 30, An Act to Amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148, para. 58-60, per Wilson J. The rights protected by s. 93 are not engaged by the matters in dispute between the parties.
[42] Furthermore, the appellants mischaracterize the motion judge’s findings. The motion judge found that the appellants are free to “raise concerns about policies concerning issues affecting the LGBTQ2S+ community in the TCDSB. [They] can criticize the conduct of trustees (and councillors) who support such policies.” The problem with the appellants’ articles was not that they took a position adverse to that of LGBTQ2S+ advocates with respect to Roman Catholic doctrine and education about sexuality. The problem was that they “used derogatory and prejudicial language” to do so, using stereotypes of “predation, pedophilia, and socially destructive behaviour.” This was the aspect of the appellants’ speech that exposed them to the complaint that they expressed discriminatory statements.
[43] The appellants’ constitutional arguments thus failed, and accordingly so do those non-defamation causes of action (misfeasance in public office and inducing breach of contract) which, on appeal, are entirely dependent on the success of the constitutional arguments. . Sudbury and District Health Unit v Ontario Nurses’ Association
In Sudbury and District Health Unit v Ontario Nurses’ Association (Div Court, 2023) the Divisional Court denied a JR as premature where a labour arbitrator decided that there was prima facie human right discrimination (only), and the arbitration was bifurcated into prima facie and undue hardship stages:[9] A finding of prima facie discrimination means that the claimant has satisfied its initial evidentiary burden. It is not a final determination that discrimination has actually occurred-such a determination is made only after the Employer has called evidence about whether it could accommodate the claimant without undue hardship: As the Arbitrator properly recognized, to demonstrate prima facie discrimination, complainants 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. Once a prima facie case has been established, the burden shifts to the Employer to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. (Moore v British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para 33.)
[10] The Arbitrator’s decision only addressed the first part of this test. The following issues remain outstanding:a. Whether the Employer could have accommodated the grievor without undue hardship;
b. If the Arbitrator finds that the Employer could have accommodated the grievor, there then is the issue of remedy to be determined;
c. If the Arbitrator finds that the Employer could not have accommodated the grievor, the Respondent will be proceeding with the grievance challenging the reasonableness of the vaccine policy itself. . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal, on an appeal from a judicial review, reinstated an HRTO finding that Imperial Oil had discriminated against the appellant on the basis of citizenship. Here the court considers proving prima facie discrimination:[20] The tribunal found in the appellant’s favour in a decision issued July 20, 2018. The tribunal’s findings included: (1) that the appellant had standing under s. 34 of the Code to bring his application; (2) that Imperial discriminated against the appellant on the basis of citizenship by imposing an employment condition of permanent eligibility to work in Canada which must be proved by Canadian citizenship or permanent resident status; (3) that the discrimination was direct discrimination; (4) that Imperial had not established that the appellant’s dishonesty was the sole reason for withdrawing the job offer – even if the appellant’s dishonesty was one factor in Imperial’s withdrawal of the job offer, it was clear that the appellant’s citizenship status was also a factor, and thus the decision was tainted by discrimination on the basis of citizenship; and (5) in the alternative, if the discrimination was not direct discrimination, that Imperial had not established a bona fide occupational requirement (“BFOR”) defence.
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E. Relevant principles of analysis of discrimination claims under human rights legislation
[49] Before turning to the reasonableness of the tribunal’s decision, I begin with a discussion of a number of basic principles for the analysis of human rights claims that are well-established in the jurisprudence. This context is relevant to understanding the law that constrained the tribunal as a decision-maker, and also relevant to where the Divisional Court majority misapplied the reasonableness standard.
(1) Elements of a claim of discrimination under human rights legislation
[50] The three-step analysis to establish a prima facie claim of discrimination is well-established. The applicant must show: (1) that they have a characteristic protected from discrimination under the Code (i.e., they are a member of a group protected by the Code); (2) that they have experienced an adverse impact (treatment) in a category of activity regulated by the Code, such as employment or a service; and (3) that the protected characteristic was a factor in the alleged adverse treatment: Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33; Midwives, at para. 101; Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at paras. 55-59.
[51] Under the third branch of the analysis for a prima facie case of discrimination, the applicant need only prove a connection between the prohibited ground and the adverse treatment. The connection does not need to be causal. Further, the connection between the adverse treatment and the prohibited ground can co-exist with other non-discriminatory factors. The prohibited ground need not be the only reason for the adverse treatment, or even the predominant reason: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39, [2015] 2 S.C.R. 789, at paras. 43-52; Midwives, at para. 102; Pieters, at paras. 59-60.
(2) The burden of proof and the shifting evidential burdens
[52] The ultimate burden to prove a claim of discrimination on a prohibited ground is on the applicant. However, the case law establishes a series of shifting evidential burdens to structure the analysis. The law is well-settled and was recently considered by this court in Midwives, at paras. 143-51.
[53] An applicant who brings a claim under the Code bears the ultimate burden to prove that a discriminatory ground under the Code was a factor in the impugned conduct. If the applicant establishes a prima facie case of discrimination, then the evidential burden shifts to the responding party to rebut the prima facie case by providing a credible, non-discriminatory explanation for the impugned conduct which rebuts the prima facie case. In other words, once a prima facie case of discrimination on a prohibited ground is demonstrated, the evidential burden shifts to the respondent to rebut that a prohibited ground of discrimination was a factor in the impugned conduct. If the responding party succeeds in rebutting the prima facie case, then the evidential burden shifts back to the applicant to prove that the respondent’s non-discriminatory explanation is pretextual. See also: Pieters, at paras. 63-74; Ontario v. Association of Midwives, 2020 ONSC 2839, 82 Admin L.R. (6th) 241, at paras. 144-51, aff’d 2022 ONCA 458, 161 O.R. (3d) 561.
[54] The ultimate burden of persuasion always rests with the party claiming discrimination. However, the shifting evidential burdens support the underlying principle of anti-discrimination legislation that where a responding party seeks to demonstrate a non-discriminatory reason for the impugned action, it is not sufficient to show that a non-discriminatory reason was part of the reason for the action if discriminatory reasons were also part of the reason. Rather, the responding party must show that the non-discriminatory reason was the sole reason for the action. In other words, the jurisprudence recognizes that the reasons that motivate actions taken by, for example, an employer or potential employer, may be multi-factorial. If one of the reasons is discriminatory, this establishes a violation of the Code (subject to statutory defences): Bombardier, at paras. 43-52. The presence of a non-discriminatory reason for the impugned conduct does not insulate the conduct from a finding of discrimination under the Code if it is combined with one or more discriminatory reasons.
[55] The shifting evidential burdens also recognize that if there is a non-discriminatory explanation for the impugned conduct, the respondent is uniquely positioned to provide evidence on that issue, because it has to do with the respondent’s state of mind or motivation: Pieters, at paras. 70-73.
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(4) Partial discrimination is still discrimination
[67] In order to establish a finding of prima facie discrimination, it is not necessary that all members of the protected group at issue be affected or affected in the same way. For example, in Brooks, the Supreme Court held that an employer’s policy that denied benefits to employees during pregnancy constituted discrimination on the basis of sex. Although not all women become pregnant, the policy had a discriminatory impact on women. In other words, the fact that discrimination is partial does not convert it into non-discrimination: Brooks, at pp. 1247-48. See also: Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, at pp. 1288-89; Fraser, at paras. 72-75; Meiorin, at paras. 11 and 69.[4]
[68] The interveners, the South Asian Legal Clinic of Ontario and the Colour of Poverty/Colour of Change Network, directed the court to another helpful example of this principle. At one time, elementary school teaching contracts often either barred married women from contracts, or required that they be placed on limited-term contracts. These policies were based on sexist stereotypes of conflict between child-rearing and work for mothers, and gendered division of labour in families. Despite the fact that these policies did not affect women who chose not to marry – and thus did not affect all women – such policies were found to constitute discrimination on the basis of sex.[5] The policies only applied to women. The fact that not all women were affected did not “cure” the discriminatory effect. It simply made the policies partially, rather than fully, discriminatory.
[69] In light of this review of the human rights law principles and constraints governing the analysis of the tribunal (and the Divisional Court), I turn now to a consideration of whether the tribunal’s decision was reasonable. . City of Toronto v. Canadian Union of Public Employees
In City of Toronto v. Canadian Union of Public Employees (Div Court, 2023) the Divisional Court considered the initial onus for a finding of discrimination, here in a JR of a labour arbitrator's decision:[19] In order to demonstrate a prima facie case of discrimination under the Code, a complainant need only establish the following: (1) that they are a member of a group protected by the Code; (2) that they were subjected to adverse treatment; and (3) that the protected ground was a factor in the alleged adverse treatment: Shaw v. Phipps, 2010 ONSC 3884, 325 D.L.R. (4th) 701, at para 47.
[20] It has long been held that intention is not a required element of discrimination under the Code: Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at p. 549; Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81, at paras. 111-12; Phipps, at para. 76. The focus is instead on the impact on the individual, regardless of any discriminatory intent or motive. It is also unnecessary to show direct evidence of discrimination; discrimination may be proved by circumstantial evidence and inference: Pieters, at paras. 111-12. . Ontario (Health) v. Association of Ontario Midwives
In Ontario (Health) v. Association of Ontario Midwives (Ont CA, 2022) the Court of Appeal cited a leading case in determining human rights discrimination:[101] The Adjudicator articulated the well-established three-step test the complainant must meet to demonstrate prima facie discrimination, citing to the Supreme Court’s decision in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33. To establish a prima facie case of gender discrimination, the claimant must show that:(1) they are a member of a group protected by the Code;
(2) they have been subjected to adverse treatment; and
(3) their gender was a factor in the adverse treatment. The court approves the Adjudicator's ruling as 'reasonable' at paras 102-122.
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