In racism claims, preference given to allegations over conclusive proof
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- Created on Tuesday, 20 August 2013 21:18
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In racism claims, it seems the BC Human Rights Tribunal gives preference to allegations of racist behaviour (by visible minorities) over conclusive proof of non-racist behaviour (by corporations or members of the visible majority). In a rather rich ruling, Tribunal member Norman Trerise found that the Shark Club of Langley discriminated against three people on the basis of the colour of their skin.
Here’s the story: three Indo-Canadians showed up late to a reserved party at the club. The doormen refuse to let them in. While arguing about it, other patrons were allowed in. The three complainers jumped to the conclusion that the only reason they weren’t allowed in is because they are Indo-Canadian. This same sob-story is given at the Tribunal hearing, which Norm swallows hook, line and sinker.
Now, I’ve read the decision, and there are inconsistencies in the testimony of both the doormen and the manager, which work against the club. But there is a piece of evidence that mitigates in favour of the club, a piece that is really, really hard to ignore. Norm, the ol’ rascal, manages to pull it off though! What piece of evidence is that? Well, the fact that there was already an entire party of Indo-Canadians inside the restaurant!
So, how can doormen be found guilty of barring entry to Indo-Canadians on the basis of race, when those same doormen already allowed many members of the same racial group into the restaurant? In fact, the complainers readily admitted that in the whole argument with the doormen, never once was a racial slur uttered (para. 37). Furthermore, some of the people barred from the premises that night had been to this same club numerous other times (para. 149), which begs the question, why would these suffering patrons return repeatedly to a racist club?
The Tribunal (at para. 310) cites authority for the test on credibility of witnesses. He states,
I am guided by the approach outlined in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), pp. 356-357 where the court stated:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
So, how is it that a Tribunal can look at the story of the complainers and look at the situation at the club, where there are 40 or so Indo-Canadians inside already, partying it up, and conclude that, on the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions, the club did in fact discriminate against these folks because of their ethnicity? It doesn’t make sense to me. I guess I’m not a practical, informed and reasonable person then.
I guess the fact that I’m not a practical, informed and reasonable person is also the reason why I find it absolutely shocking that each complainer walked away with a windfall of $10,000 each (para. 396) simply for not getting to join a party for one night. The club already has lost business due to the humiliation of a human rights complaint, and I'm sure it lost business that night due to the tussle by its front door and the party leaving early. Is a $30,000 award to the complainers based on their own racist assumptions (or, quite possibly, their own financial interests) really necessary or even reasonable? I don't think so.
