In Peel Law Association v Pieters the Ontario Court of Appeal affirmed that the test for finding prima facie discrimination under the Ontario Human Rights Code does not require that the discrimination be intentional. The court set aside a decision of the Ontario Divisional Court and reinstated a decision of the Ontario Human Rights Tribunal, which found that race and colour were factors in a librarian's decision to ask the applicants for identification when they were using a lawyer lounge.
The applicants were in a Peel Law Association lawyer lounge to which only lawyers and law students were permitted access. Two applicants were lawyers and one was a law student. All of them were black. A librarian approached the applicants and asked them in an allegedly threatening manner to produce identification, but did not ask anyone else. The applicants brought applications to the tribunal alleging discrimination.
The tribunal found that there were sufficient facts to support a prima facie case of discrimination and awarded each of the applicants C$2,000 in damages for the injury to their dignity.
On judicial review, the divisional court quashed the tribunal's decision because it found that a prima facie case of discrimination had not been established under the following test:
- 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 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).
The appeal court held that the divisional court had erred in law by requiring a causal nexus in finding discrimination. Noting that past jurisprudence had not used this term, the court held that there need only be a 'connection' between the adverse treatment and the grounds of discrimination, and that the inquiry should focus on the discriminatory effects of alleged misconduct and not on the intention behind it.
Ruling that the need for a causal nexus "elevate[s] the test [for discrimination] beyond what the law requires", the court set aside the divisional court's judgment and reinstated the tribunal's award of damages.
In Peel Law Association the court reaffirmed that intention is not a necessary element for finding discrimination under the code, which in effect presents a relatively low threshold to meet. Employers should be aware of this, especially in light of the Pinto Report's recommendations that the range of damage awards at the tribunal be increased to thwart those who would treat them as a "license to discriminate".
Accordingly, proactive employers should take certain steps to prevent discrimination complaints in the first place and assist their case should the need ever arise. For example, they should:
- review non-discrimination policies to ensure that intention is not necessary for a finding of misconduct (given that intent is a relevant factor in the US discrimination analysis, some Canadian employers may have inherited this wording unknowingly);
- train staff on the policy and respect at work generally to ensure that they are aware of potential triggers for discrimination claims; and
- hold annual "refresher" training on same.
As a practical matter, should an employer ever find itself before the tribunal, it will always be helpful to show how seriously it takes its obligations in this regard.
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