The Human Rights Tribunal of Ontario (the “Adjudicator”) found that a police constable, Michael Shaw, (“Shaw”) discriminated against a Canada Post carrier, Ronald Phipps (“Phipps”) contrary to the Human Rights Code, RSO 1990 c.19 (the “Code”). Shaw’s appeal from the judicial review upholding the Adjudicator’s decision was dismissed.

[2012] OJ 2601

2012 ONCA 155

Ontario Court of Appeal

S.T. Goudge, R.P. Armstrong and S.E. Lang JJ.A.

March 13, 2012

Shaw had been patrolling in an affluent neighbourhood where men fitting the description of white Eastern European men driving vehicles were suspected of cutting telephone lines. Shaw did not see any men of this description, but observed Phipps. Phipps was dressed in a Canada Post uniform and was walking with a Canada Post satchel, delivering mail. Phipps was not the usual letter carrier and he delivered mail in an "unusual order", according to Shaw. Phipps knocked on the door of one house and had a conversation with the householder. Shaw sent his officer trainee to inquire with the householder about the conversation. The householder explained that Phipps had inquired about misdirected mail. Shaw stopped Phipps and questioned him about his postal identification and ran a criminal records search of his name. He then permitted Phipps to resume delivery. Afterward, he made further inquiries of a white letter carrier in the area, about Phipps’ bona fides.

The Adjudicator found that Shaw had discriminated against Phipps, since his colour was “a factor, a significant factor and probably the predominant factor” in Shaw’s actions toward Phipps.

On judicial review to the Ontario Divisional Court, the Adjudicator’s decision was upheld as reasonable, supported by the evidence and reflecting a proper application of the law. There was a dissenting judgment on the issue of discrimination, where Nordheimer J. held that the Adjudicator’s decision was unreasonable because it did not have appropriate evidentiary support and analysis on the issue of discrimination.

An appeal from the Judicial Review was brought by Shaw and Police Chief William Blair, to the Ontario Court of Appeal. The Court of Appeal held that an adjudicator’s decision is subject to judicial review only, and not appeal, pursuant to Section 45.8 of the Code. In addition, all counsel agreed that the Divisional Court properly identified the reasonableness standard of review as the appropriate standard of judicial review into an adjudicator’s discrimination conclusion. Since the Adjudicator has specialized expertise in the area, the reasonableness standard would accord the highest degree of deference.

The prima facie test for discrimination requires that the Complainant prove that he or she is a member of a group protected by the Code, that he or she was subjected to adverse treatment, and that his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.

The Appellants contended that the Adjudicator missed the requirement to establish a nexus or connection between Phipps’ colour and Shaw’s treatment of him. The Appellants argued that no such connection was established on the record. The Court of Appeal held that the Adjudicator’s Reasons specifically recognized the requirement for a connection between the Applicant’s skin colour and his treatment by Shaw. Although the Adjudicator did not use the word “nexus” there is no “mandatory incantation of particular words”. The Adjudicator’s Reasons evidenced that she understood the need for the Complainant to establish a connection between Mr. Phipps’ colour and the alleged adverse treatment.

The Appellants also argued that the Adjudicator should have declared that the prima facie test for discrimination had been met at the conclusion of the Complainant’s case, prior to allowing Shaw to give evidence. No authority was provided for this assertion. The Court concluded that there is “no rational justification for requiring an adjudicator to decide the same issue on two occasions at two different points in the hearing in the absence of any challenge to the sufficiency of the evidence at the conclusion of the complainant’s case.”

The Appellants further argued that the Adjudicator’s reasoning improperly placed an onus on Shaw to disprove discrimination. However, the Adjudicator’s Reasons evidenced her understanding that the Complainant did not need to prove that Shaw’s adverse actions were consistent only with discrimination. The test would be met if one of the factors influencing Shaw’s actions was Phipps’ colour. Phipps had to establish discrimination first and, if he did so, Shaw would have to provide a rational and credible explanation for his actions, other than discrimination.

The Appellants further challenged the Adjudicator’s Reasons on the basis that discrimination was founded through “unconscious discrimination”. The concept of unconscious discrimination, in the Appellant’s view, improperly placed a burden of disproof on Shaw. However, the Court of Appeal found that the Adjudicator drew an inference of discrimination based on the evidence. This was not a case where the conclusion was reached without any supporting evidence. The Court noted that there is seldom direct evidence of a subjective intention to discriminate because racial stereotyping can be the result of subtle and conscious beliefs or prejudices. Therefore, discrimination is often proven by circumstantial evidence.

The Adjudicator’s role was to determine whether Shaw’s actions were discriminatory contrary to the Code, not whether his actions were reasonable. The Adjudicator appropriately articulated her task in reaching a determination about whether Shaw’s exercise of power in carrying out his duty as a police officer complied with the Code. The Adjudicator was entitled to consider the requirements of the Police Services Act, which include the need to be sensitive to the pluralistic multi-racial and multi-cultural character of Ontario Society.

The appeal was dismissed with no order for costs.