Thursday, November 17, 2011

Judicial Review of the Peel Law Association matter - November 22, 2011

The hearing of the Judicial Review Application of the significant and ground-breaking decision in Pieters v. Peel Law Association 2010 HRTO 2411 released on December 03, 2010, by the Human Rights Tribunal of Ontario, will be heard by a three panel bench of Divisional Court in Toronto:

Date: November 22, 2011

Time: 10:00 a.m.

Location: Ontario Divisional Court, Courtroom 3, located at Osgoode Hall, in Toronto.

This  found that the Peel Law Association and its Librarian, Melissa Firth, targeted three Black men, two of whom are lawyers (Brian Noble and Selwyn Pieters) and one of whom is a student (Paul Waldron), for carding in an “aggressive and demanding” manner because of their race and colour, in the Lawyers’ Lounge of the Peel Law Association at 7755 Hurontario Street, in Brampton, Ontario, on May 16, 2008

The Tribunal found as fact that the Applicant Firth did not provide a non-discriminatory reason:

[85] ... In the present case, the respondents have failed to provide a credible and rational explanation for why the personal respondent stopped to question the applicants when she did.  The inference I draw from this, as well as all of the surrounding circumstances, is that this decision was, in some measure, because of their race and colour.

[86]           The respondents contended that the personal applicant spoke directly to Mr. Noble and Mr. Waldron and not Mr. Pieters because he was on the telephone and that the personal respondent recognized him from previous visits to the lounge.  The respondents submitted that by seeking to confirm the identity of only two of the three Black men in the lounge, the personal respondent could not have been racially stereotyping or profiling Black men by assuming that Black men present in the lounge were not lawyers.  This argument fails. I find, as noted earlier, that the personal respondent was questioning all three men as to their right to be in the lounge.   That the personal respondent disputed the fact that she challenged all three men as to their right to be in the lounge is a significant issue for me.  It undermines the general credibility of her explanations for why she chose to question the applicants.

In racial discrimination and racial profiling cases, the Tribunal is entitled to consider whether Ms. Firth provided a reasonable and racially neutral explanation or whether she provided an explanation that lacks credulity and failed to investigate or treating differently similarly situated White individuals:

[89] It is significant, in my view, that the personal respondent did provide an explanation at the time she was questioning the applicants for her actions.  She stated that she knew everyone else in the lounge to be lawyers.  This claim is clearly not true given that Ms. McFadden was not a lawyer and Ms. Reesor, although a lawyer, had never been in the lounge before. 

[90] I have considered whether the personal respondent may have simply relied on this false statement in the heat of the moment, not knowing what to say when challenged by the applicants to explain her decision to question them.   But even if I accept that the applicant relied on this comment in the heat of the moment, it is nonetheless revealing that the personal respondent could not generate a credible non- discriminatory reason for why she was questioning the applicants, for example that she had to resolve the issue of who re-arranged the furniture or that she was in the process of questioning everyone in the lounge she did not know and was beginning with the applicants.  The lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent’s decision to question the applicants was indeed tainted by considerations of their race and colour.

[91]     I have also considered the manner in which the applicant approached and questioned the applicants and whether she subjected them to undue scrutiny. I am mindful of the decision in Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII), at para. 134, which states:

        I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also sup-ports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black. (Emphasis in original)

[92]     I have already found that the personal respondent questioned the applicants in an aggressive and challenging manner. I further note that she interrupted Mr. Pieters while he was on the telephone and, it appears, did not introduce herself to the applicants and Mr. Waldron. From all the evidence, including the personal respondent's testimony of how she generally carried out this function, I conclude that the way in which the personal respondent approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and I am prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour. That said, I accept that the personal respondent's contention that her regular practice is to ask for identification from individuals even when they are identified by someone else as admissible and so her repeated requests for identification from Mr. Noble and Mr. Waldron does not suggest, in my view, a greater degree of scrutiny