AccounTrust (post until Sept. 30/19)
Employment & Labour

In discrimination cases, "explain or risk losing," says court

A recent Ontario Court of Appeal ruling confirms that it is not important whether an employer or an employee did not intend to discriminate, but whether the effect of their behaviour is discriminatory, says Toronto civil litigation and employment lawyer Arthur Zeilikman.

“The implication is that unless there is a reasonable rebuttal, discrimination can be found even on mostly inferential grounds,” he says.

In Peel Law Association v. Pieters, the appellants, who are black, were counsel in a proceeding at the Brampton Courthouse. They were approached upon entry into a lawyer’s lounge operated by the Peel Law Association and asked to produce identification to show they were lawyers or law students. No one else in the lounge was asked for identification.

The lawyers brought applications to the Human Rights Tribunal of Ontario (HRTO), alleging an infringement of their rights under s.1 of the Human Rights Code, to “equal treatment with respect to services, goods and facilities without discrimination because of race and colour.” The vice-chair of the HRTO found their rights had been infringed and awarded each appellant $2,000 for injury to his dignity.

While the Divisional Court allowed the respondents’ application for judicial review and quashed the vice-chair’s decision, the Court of Appeal reinstated the decision, saying that evidence relied upon by the vice-chair “provided an ample basis to support the inference that the appellants’ race and colour were factors in the librarian’s questioning of them.”

The Court of Appeal, says Zeilikman, drew a distinction between the burden of proof that rests with the applicant and the tactical necessity of the respondent’s rebuttal.

“Ultimately, the burden of proof rests with the applicant. However, the burden will shift to the respondent if a prima facie case is made. This means the respondent will need to tell his side of the story if he wants to refute or, at the very least, weaken the applicant’s case. As the court said: 'explain or risk losing,'" he says.

When it comes to the impact of this case on other human rights hearings, Zeilikman says the decision also reaffirms the proposition that courts have to show deference to administrative bodies.

“The decision confirms that a reviewing court will not interfere with an administrative tribunal’s decision unless it is incorrect in law or unreasonable in light of the evidence presented,” he adds.

To Read More Arthur Zeilikman Posts Click Here
Lawyer Directory
BridgePoint Financial Services (post to 5.31.19)Toronto Lawyers Association (post to 6.30.19)MKD International (post until Sept. 30/19)Feldstein Family Law (post until May 31/19)Legal Print & Copy Inc.Macdonald Sager Manis Will DavidsonMacDonald & Associates (post until July 31/19)