Thursday, September 12, 2013

Litigating Racial Discrimination in the Legal Profession: Pieters and Noble v. Peel Law Association

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)

Prepared for 2013 OBA Constitutional and Human Rights Law September 10th Dinner Program

Thank you for inviting me to speak. I was asked to speak on the litigation before the Human Rights Tribunal in Pieters v. Peel Law Assn and Mellissa Firth 2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O)  so my remarks are mainly restricted to the first level decision of the adjudicator, which has subsequently been upheld by the Court of Appeal for Ontario.

The Encounter at the Library

That a confrontation of sorts between myself, Mr. Noble, Mr. Walrond and Ms. Firth happened at the Lounge of the Peel Law Association at 7755 Hurontario Street, in Brampton, Ontario, on May 16, 2008, is without a doubt.

Myself, Mr. Noble and Mr. Waldron were at the Brampton Courthouse representing K.F., a Black youth who had filed a racial profiling complaint with the HRTO and was now before Mr. Justice Blacklock with an Application to access records to be used in the Human Rights Tribunal hearing [K.F. v. Peel (Regional Municipality) Police Services Board [2008] O.J. No. 3178, 2008 ONCJ 382 (Ont. CJ.)]. Also present at the hearing of the Application were Raj Dhir and Monmi Goswami representing the Ontario Human Rights Commission, Laurie Ann Reesor and Elizabeth McPhadden representing the Peel Regional Police, and Nicola Simons representing the Dufferin Peel Catholic District School Board. With the exception of Kate Sturdy, an OHRC legal Assistant, the participants to the hearing retreated to the lawyers’ lounge of the Courthouse to await recall by His Honour.

That myself, Mr. Noble and Mr. Waldron were entitled to be in the lawyers’ lounge is also without question. Both myself and Mr. Noble were lawyers at the material time and Mr. Walrond was a student-at-law whom I employed. Ms. Firth was the law librarian and stated that it was her duty to police the space and bar access to paralegals and members of the public.

Human rights complaints were filed by Mr. Noble and I and heard before the Tribunal in 2009, which in terms of processing time was extremely fast.

At issue before the Tribunal was what precisely occurred during the incident at the lounge and whether or not it amounted to impermissible racial profiling.

The Hearing at the HRTO

At the hearing I was represented by my articling student, Mary Auxi-Guio. The PLA was represented by Andrew Pinto. Mr. Noble self represented.

“4 The hearing took place over three days and involved 12 witnesses including ten who testified that they witnessed the May 16 incident between the applicants and the personal respondent. It is noteworthy that these ten witnesses (eight were eyewitnesses and two heard parts of what tran-spired) provided differing versions of the incident.”[1]

The Tribunal very early on considered the core functions of the administrator:
[20]           I had before me the PLA “Policies for Library and Lounge Use” passed at the July 5, 2005 Board of Directors’ meeting.  This one page policy states that the lounge is for the use of members in good standing of the Law Society of Upper Canada.  Of note, the Policy also specifically  states that:
The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Lawyers’ Lounge within the spirit of the policy.
The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Library.[2]
Peel Law Association policy provides that:


Ms. Firth had the right to deny access to unauthorized persons. Lawyers and students, however, were authorized to be in that space. The manner in which Ms. Firth exercised her authority was the critical issue.

The Tribunal set the scene:

12     The lounge was not busy at the time of the incident with perhaps a total of twenty persons present. The applicants were seated in an area of the lounge just outside the doors to the library. Mr. Pieters was in a chair talking on the telephone to his assistant, Michael Roberts. Mr. Noble and Mr. Waldron were on a sofa perpendicular to where Mr. Pieters was sitting; Mr. Noble was closest to Mr. Pieters, Mr. Waldron closest to the library door. The sofa was against a frosted glass half-wall that divided the kitchenette from the lounge. Ms. Trotter was in the kitchenette. Mr. Dhir and Ms. Goswami were at a worktable approximately 15 feet away from the applicants. Ms. McFadden and Ms. Reesor were seated further away in the lounge.[3]

The Tribunal recognized that this was a difficult incident because the lawyers had the right to be there and the Librarian had a job to do.

 [62]           This was clearly an emotional and dramatic incident and one that quickly escalated into confrontation.  It was certainly an emotional experience for the applicants and the personal respondent, all of whom testified to how they were surprised, distressed and upset by what they felt occurred.   It was a dramatic event for those who witnessed it, most of whom spoke about the charged and confrontational nature of what they saw or heard and the resulting confusion when a number of the witnesses subsequently became involved.[4]

Findings of Fact and Credibility

On the issue of the initial encounter and Ms. Firth’s demand for identification from myself, Mr. Noble and Mr. Walrond, the Tribunal found that:

    1. Ms. Firth, without identifying who she was, first approached Pieters - who was on the telephone; Pieters verbally identified himself as a lawyer (at paras. 64, 67);
    2. Ms. Firth in an aggressive and demanding manner requested to see his identification (at paras. 77, 84); Pieters showed the identification (at para. 72);
    3. Pieters also told his assistant Roberts, to whom he was speaking on the telephone that he was being racially profiled (at paras. 65, 74);
    4. Ms. Firth then attempted to grab Pieters wallet; Pieters told her not to touch his wallet; (at para. 71)
    5. Ms. Firth despite the claim that she was intimidated by Pieters, frozen and considered it rude to leave him, did move on to check the identification of Noble and Walrond (at para. 67);
    6. Mr. Dhir and Ms. Goswani approached with their identification and she did not look at it (at para. 50);
    7. Ms. Reesor also had her identification ready and Ms. Firth did not look at it;
    8. Ms. Firth was demanding and aggressive in her approach (at para. 74);
    9. The evidence of Bonnie Racz and Mellissa Firth on the initial interaction were either vague or at odds with the evidence of the other witnesses on important points (at paras. 69 -72).
Ms. Firth had an opportunity to look at the identification of the other unknown persons in the lounge and chose to focus her attention on the three Black men, Pieters, Noble and Waldron,  precisely because she consciously or unconsciously believe that they were out of place.

The White non-lawyer female ("agent") in the Robing Room

Ms. Bonnie Racz, a lawyer and Director of the Peel Law Association, went into the library area shortly after leaving the female robbing room – she  had just asked “an attractive caucasian woman who was very nicely dressed” to leave the robing room. The woman was not a lawyer, she "said she was someone's agent. She would not say who she was acting as agent for" and “Ms. Racz explained that the robbing room was off limit to non-lawyers”.

The Tribunal considered the evidence that:
                                                              i.      Ms. Firth’s purpose for leaving the library was to head to the robing room at the behest of Ms. Racz; and
                                                            ii.      that she diverted her attention to myself and my group (at para. 84).

Ms. Firth's aggressive and demanding demeanour

The Tribunal found that Ms. Firth adopted an aggressive and demanding demeanour in dealing with myself and my party:

                                                          iii.      when Ms. Firth first approached me, she actually interrupted my telephone conversation to demand I identify myself;
                                                          iv.       she did not accept my word that I was a lawyer;
                                                            v.      she then demanded my identification, which I promptly produced; and
                                                          vi.      she attempted to grab my wallet.

The evidence as cited by the Tribunal in paragraphs 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, and 51 is ample to support the finding that:

[77] ....the manner in which the personal respondent asked her questions and interacted with the applicants was aggressive and demanding.  Mr. Dhir and Ms. Goswami both testified as to the aggressive and blunt way in which they felt the personal respondent interacted with the applicants.  It is clear that the applicants found the personal respondent’s questions and the way in which they were asked abrupt and offensive.  I accept the applicants’ evidence that they found their overall experience with the personal respondent to be demeaning.[5] 

The Evidence of Laurie Reesor – The “Announcement”

Partway through the hearing I was frightened by the evidence of one of my colleagues, which totally contradicted my memory of the events:

[61]           Ms. Reesor testified that she had not been in the lounge before.  She recalls two persons coming into the lounge and one of them announcing to the room (not to any particular group) that they would be checking identification.   She believed that it was these two persons who then approached the applicants with the one who had made the announcement interacting with Mr. Pieters  (emphasis added).[6]

The Tribunal disregarded this testimony.  In addressing Ms. Reesor's evidence, the Tribunal found that:

[79]           I find that the personal respondent did not intend to generally check identifications in the room.   It is true Ms. Reesor testified that she recalled a general announcement to that effect when the personal respondent and Ms. Racz first came into the lounge, but I heard no other evidence to support this contention.  The personal respondent did not state that this was her intention  (emphasis added).[7]

Findings of Racial Profiling based on reasonable inferences from the evidence

The Tribunal considered the explanation offered by Ms. Firth and found Ms. Firth failed to provide a credible non-discriminatory reason for stopping and questioning myself, Mr. Noble and Mr. Waldron. It also found her testimony on a significant point to be lacking in credibility, a finding it was entitled to make:

[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.

The Tribunal also linked the robing room incident with the stop and carding at the door and found that:
88     … the respondents argued that the personal respondent routinely questioned unknown persons in the lounge and that such questioning fell within her regular job duties. I accept this to be true. However, the issue for me is why, on this particular occasion, the personal respondent stopped at all to question the applicants. The evidence was that the personal respondent was on her way with Ms. Racz to speak to a person in the robing room whom Ms. Racz did not recognize and was concerned enough to come and ask the personal respondent to confirm her identification. The personal respondent never did provide an explanation for why she chose to stop under these specific circumstances to question the applicants and Mr. Waldron. (emphasis added).[8]

The Tribunal was therefore entitled to, as it did, scrutinize the interaction in question and conclude that:

[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.[9]

In the Tribunal’s view, which had been my view and the view of the other Applicant all along, this was a clear case of racial profiling and discrimination.

The Award

The Tribunal awarded myself and Mr. Noble $2,000.00 respectively “for the injury to their dignity, feelings and self-respect arising out of the infringement of the Code”.[10] It must be noted that this award was at the very low end of the scale for awards in such cases. The Tribunal ruled that the discrimination in this case was at the less serious end of the spectrum due to, among other things, it being a single incident, the fact that the Applicants were ultimately not denied access to the lounge, and the fact that the incident did not affect our ability to practice law.[11]

Implications for the Legal Profession and the Law on Discrimination

Now that the Peel Law Association has determined that it will not seek leave to appeal the Court of Appeal decision which upheld the HRTO’s ruling, the positive findings in this case are significant to lawyers and their conduct in interactions with other lawyers.

The Law Society’s Rules of Professional Conduct governing the conduct of lawyers has both specific and general application.  Some of the rules are designed to address specific circumstances while others are designed to have a more general application as not every conceivable situation can be specifically stipulated in the rules. Rule 5.04 however is specific to advocating in a multicultural society.[12] Had the Rules of Professional Conduct been observed in this case, I may not have been standing before you today discussing this matter.

The lawyer also has a duty to society and in the public interest to respect the dignity and worth of every person and to operate their practice in a manner that complies with the OntarioHuman Rights Code.[13] This is important because of the many reports and cases supporting the view that there is systemic racial discrimination in the legal profession and the justice system more broadly.[14]

There are also, of course, wider implications for the law on discrimination in Ontario, especially in the wake of the recent Court of Appeal decision. While my colleagues on the panel will speak more about these developments, I will state broadly that it is clear that it is now easier to “call a spade a spade” when it comes to racial discrimination, and more difficult for those who would engage in discrimination and profiling to shield themselves with official policies and procedures, whether or not they are aware of their own discriminating behaviour.

Finally, this case speaks to the huge importance and relevance of the various Human Rights Tribunal regimes across Canada. Years ago, it would not have been possible for someone like me to air this grievance in a public forum, unless it was possible to frame it in terms of a tort. Now, however, incidents of racial discrimination like this one can be brought out into the open and dealt with. This leads to a more transparent and inclusive society. In Campbell v.Jones 2002 NSCA 128, Justice Roscoe of the Nova Scotia Court of Appeal ruled that in situations where there are serious Canadian Charter of Rights and Freedoms and human rights violations the victim has the right and an obligation "to cry out loud and long against their transgressors in the public forum and -- in the case of children and others less capable of articulation of the issues -- to have their advocates cry out on their behalf." Human Rights Tribunals provide an avenue more accessible than any other to do just that.

Decisions online

Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII)  (Vice Chair B. Eyolfson); Noble v. Peel Law Association2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII)  (Vice Chair K. Joaquim); Pieters v. Peel Law Association2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, (2013), 306 O.A.C. 314, [2013] 116 O.R. (3d) 312 (CanLII) (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 812013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204  (Cronk, Juriansz and Pepall JJ.A.)

Press Coverage

Canadian Underwriter, Court rules in favour of RSA and broker after liability client demands payment for defence costs; National Post "Dreadlock discrimination real: black lawyer’s human rights appeal told" November 19, 2012, Toronto Sun "Discrimination case tough to establish", Michele Mandel ,Toronto Sun, November 19, 2012 and Law Times, Lawyer’s racial profiling case argued at appeal court, by Yamri Taddese, December 31, 2012;


Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in human rights, civil and criminal litigation matters in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario.

Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 at the HRTO; Civil Rights lawyer Charles Roach in the Oath case of Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry.  Selwyn is the litigant in the recent human rights case of Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, [2013] O.J. No. 2695.

[1] Pieters v. Peel Law Assn and Mellissa Firth, 2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O) at para. 4.
[2] Pieters at para. 20.
[3] Pieters at para. 12.
[4] Pieters at para. 62.
[5] Pieters at para. 77.
[6] Pieters at para. 61.
[7] Pieters at para. 79.
[8] Pieters at para. 88.
[9] Pieters at para. 92.
[10] Pieters at para. 102.
[11] Pieters at paras. 100-101.
[12] 5.04 (1) A lawyer has a special responsibility to respect the requirements of human rights  laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the  grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.
[13] LSUC Rules of Professional Conduct, Rule 5.04(1).
[14] Canadian Bar Association, Racial Equality in the Canadian Legal Profession, (Ottawa: Canadian Bar Association, 1998); Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability: Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993); R. v. R.D.S. (1997), (1997) 118 C.C.C. (3d) 353.

No comments: