By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on November 09, 2012
On November 09, 2012, the Supreme Court of Canada in a 9-0 decision in Frederick Moore on behalf of Jeffrey P. Moore v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education, et al. 2012 SCC 61 that will serve as the locus classicus case in all jurisdictions in Canada under the various Human Rights legislation on the test for establishing a prima facie case of discrimination, the burden of justification on the respondent, and whether the respondent claim that I am just doing my job or acting in accordance with policy/practice insulates him/her from a finding of discrimination.
The principles are quite succinctly set out in this decision and will serve to erase all ambiguity that exist between amd amongst various lawyers, adjudicators and Court on the tests to be applied where a discrimination case is brought under the service provision sections of Human Rights Legislation. On the issue of prima facie discrimination:
 As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
In terms of the the burden of justification on the respondent once discrimination is shown to have occurred, Madam Justice Abella wrote that:
 The next question is whether the District’s conduct was justified. At this stage in the analysis, it must be shown that alternative approaches were investigated (British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 (“Meiorin”), at para. 65). The prima facie discriminatory conduct must also be “reasonably necessary” in order to accomplish a broader goal (Ontario Human Rights Commission v. Borough of Etobicoke,  1 S.C.R. 202, at p. 208; Central Okanagan School District No. 23 v. Renaud,  2 S.C.R. 970, at p. 984). In other words, an employer or service provider must show “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” (Meiorin, at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission),  2 S.C.R. 489, at pp. 518-19; Council of Canadians with Disabilities v. VIA Rail Canada Inc., at para. 130).
In terms of looking whether the respondent claim that I am just doing my job or acting in accordance with policy/practice insulates him/her from a finding of discrimination, the Court provided a helpful analysis:
 …A practice is discriminatory whether it has an unjustifiably adverse impact on a single individual or systemically on several: Griggs v. Duke Power Co., 401 U.S. 424 (1971). The only difference is quantitative, that is, the number of people disadvantaged by the practice.
 In Canadian National Railway Co. v. Canada (Human Rights Commission),  1 S.C.R. 1114, this Court first identified ‘systemic discrimination’ by name. It defined it as “practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics” (p. 1138). Notably, however, the designation did not change the analysis. The considerations and evidence at play in a group complaint may undoubtedly differ from those in an individual complaint, but the focus is always on whether the complainant has suffered arbitrary adverse effects based on a prohibited ground.
 The inquiry is into whether there is discrimination, period. The question in every case is the same: does the practice result in the claimant suffering arbitrary — or unjustified — barriers on the basis of his or her membership in a protected group. Where it does, discrimination will be established.
This decision is welcome news coming from the highest court in the land given the great debate that arose in Ontario from the decision in the racial profiling in the provision of services case in Pieters et al v. Peel Law Assn. leave to appeal granted at: 2012 CarswellOnt 8616 from the decision of the Divisional Court at 2012 CarswellOnt 2026,  O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) that was in stark contrast to the decision of the Court of Appeal in Shaw v. Phipps, 2012 ONCA 155 (C.A.), also racial profiling case.
In the Pieters case, the Divisional Court stated, at para 14:
…in order to prove a prima fascie case of discrimination, it is not sufficient for a complainant to identify himself or herself as possessing a characteristic that is protected under the Code and then to point to an incident with a negative impact on him or her.
a. A distinction or differential treatment;
b. Arbitrariness based on a prohibited ground;
c. A disadvantage; and
d. A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.
In Phipps the Tribunal concluded after reviewing the evidence and hearing submissions from the parties, that "the applicant’s colour was a factor in Officer Shaw’s continued suspicion of the applicant and his decision to stop and question the applicant." This was upheld by the Court of Appeal which held that "the adjudicator did not assume discrimination, but drew an inference of discrimination from a number of different pieces of evidence".
The appeal hearing in Pieters takes place at the Ontario Court of Appeal, Courtroom One, on December 18, 2012 at 10:00 a.m.
COUNSEL FOR THE PARTIES
APPELLANT Geri R. Sanson – S. Pieters and B. Noble
TRIBUNAL Margaret Leighton – Human Rights Tribunal
INT Anthony D. Griffin – Ontario Human Rights Commission
INT Ranjan K. Agarwal - SALCO
INT Joseph Osuji – Just Society Group
RES Mark J. Freiman - Peel Law Association
RES Lucas E. Lung - Peel Law Association
This information is provided courtesy of the Law Office of Selwyn Pieters, 181 University Ave., Suite 2200, Toronto, Ontario, M5H 3M7 Phone: 416-787-5928 Chambers: 416-601-6806 Fax: 416-787-6145 Email: selwyn @ selwynpieters com Internet : http://www.selwynpieters.com