I like the other discrimination test better
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- Created on Wednesday, 21 August 2013 12:57
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The Ontario Court of Appeal has overturned a decision by the Divisional Court which overturned a race discrimination claim by the Ontario Human Rights Tribunal. The Court of Appeal has confirmed that the test for finding discrimination under the Ontario Human Rights Code does not require that the discrimination be intentional.
The Story: The appellants in this case (the complainants at the original Tribunal hearing) entered a courthouse library in which only lawyers and law students were permitted. Two were lawyers and one was a law student. All three of them were black. A librarian approached the applicants and asked them to produce ID, but did not ask anyone else for ID at that time. Jumping to the conclusion that it must be because they are black, the offended complainants quickly brought applications to the Human Rights Tribunal alleging discrimination.
Note: There was no harm done. They were lawyers, they had ID, they were allowed to stay in the lounge. Note as well: it was part of the librarian’s job to make sure that only lawyers and law students entered the library, so when she didn't recognize them, she asked for ID. Note also: The allegation of racism requires an inquiry into the mind and internal motivations of the librarian – it demands the reading of her thoughts at that time, a rather tricky exercise at the best of times.
Anyway, the tribunal found that there were sufficient facts to support a case of discrimination. The Tribunal found that race and colour were factors in the librarian's decision to ask the applicants for identification (even though she denied it and there is absolutely no way that it can be proved one way or the other) and awarded each of the trio $2,000 in damages for the injury to their dignity. This dignity is a real money-maker in the human rights industry!
The Test: After a real court (the Divisional Court) overturned the Tribunal's decision, another appeal went to the Court of Appeal. That court held that the lower court had made a mistake in law by requiring a “causal nexus” in finding discrimination. The Court of Appeal said that there need only be a “connection” between the negative treatment and the grounds of discrimination, and that the inquiry should focus on the discriminatory effects of the misconduct and not on the intention behind it.
The Court ruled that requiring a causal nexus would "elevate the test [for discrimination] beyond what the law requires”. By reaffirming that intention is not a necessary element for finding discrimination, the Court here presents a really low threshold for finding discrimination.
The Other Test: The divisional court had produced a much more satisfactory result, one that makes a little more sense. It had quashed the tribunal's decision because it found that discrimination had not been established in this case. It used the following test: There had to be
· a distinction or differential treatment;
· arbitrariness based on a prohibited ground;
· a disadvantage; and
· a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.
The divisional court had quashed the tribunal's decision because it found that there was no "causal nexus" between the alleged misconduct (being asked for identification) and the prohibited ground relied on (race and/or colour). (Incidentally, the divisional court had also awarded a $20,000 cost award against these lawyers, which was pretty sweet. Too bad the Court of Appeal tossed it.)
Conclusion: It’s time to amend the law and the Code to implement the other test and require a causal nexus. Intent is a relevant factor in the American discrimination analysis, and it should be here too. Where there are allegations of racism and intention cannot be proved, the presumption should be in favour of the accused. The alternative is the growth of petty claims and a victimization culture that is abusing a system for personal financial gain. Grownups, lawyers no less, should behave with more honour and maturity than these three did. They are juvenile and their complaint is pathetic.
Update: Other legal professionals share our opinion that the Human Rights Tribunal lacks expertise to deal with racial profiling. The case discussed above certainly demonstrates that the Tribunal assumes racial profiling when it is alleged and the Human Right Code facilitates that assumption.
