PEEL LAW ASSOCIATION AND MELLISSA FIRTH FOUND LIABLE FOR RACIALLY PROFILING TWO BLACK LAWYERS AND A UNIVERSITY OF TORONTO BLACK LAW STUDENT

TORONTO – December 4, 2010

In a significant and ground-breaking decision Pieters v. Peel Law Association 2010 HRTO 2411 released on December 03, 2010, the Human Rights Tribunal of Ontario, 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.

Also present in the lounge was at least 14 other persons who were not Black. The two Black Lawyers and the Black Law Student were targeted because "paralegals" are not allowed in the lawyers' lounge, forced to show identification and was drawn in a discussion that was totally uncalled for in a rude, demanding and aggressive fashion that she would not have adopte with a White lawyer.The Librarian for the Peel Law Association approached us on the basis of negative racial stereotypes and acted on that stereotypes. Interestingly enough, a Peel Regional Police employee, Ms. Elizabeth McFadden, was in the lawyers' lounge even though she was not a lawyer, law student or student at law and was not targeted or challenged. She, of course, is White. Nor was any of the White lawyers.

Mr. Pieters, Mr. Noble and Paul Waldron were at the Brampton Courthouse in connection with a Youth Criminal Justice Application before Mr. Justice Blacklock to access records to be used in a Human Rights Tribunal hearing: See K.F. v. Dufferin-Peel Catholic District School Board et al., 2008 HRTO 6 (V-Chair Hart); K.F. v. Dufferin-Peel Catholic District School Board et al., 2008 HRTO 179 (V-Chair Hart); K.F. v. Peel (Regional Municipality) Police Services Board [2008] O.J. No. 3178, 2008 ONCJ 382 (Ont. CJ.) per Blacklock J.

Lawyers were also present representing the Peel Regional Police, Ontario Human Rights Commission and Dufferin-Peel Catholic District School Board. The two lawyers from the Commission are South Asian, the lawyer for the Police was White, so is the representative of the Peel Police who accompanied her lawyer.  That Mr. Pieters, Mr. Noble and Mr. Waldron were entitled to be in the lawyers’ lounge is without question.  Both Mr. Noble and Mr. Pieters were lawyers at the material time and Mr. Walrond was a student employed by Mr. Pieters. Ms. Firth was the law librarian and by her own admission her duties was, in part, to police the space and keep out paralegals and members of the public.

At issue is what occurred during the minutes at the lounge where Mr. Pieters, Mr. Noble and Mr. Waldron were seated, and whether it amounts to impermissible racial profiling.

Evidence was heard that Ms. Firth had three different encounters on the day in question, prior to the incident:

1.      An incident where she dealt with an angry White female lawyer who was asked for her identification in the library and was unhappy about it;

2.      Stephanie Puddick’s complaint that the chairs in the lounge was moved around and some were blocking the door of the library

3.      Lawyer Bonnie Racz’s complaint that a White female, who may not be a lawyer was in the female robbing room.

The Tribunal found as fact that Mr. Pieters was on the telephone speaking to one of his staff in his office when he was interrupted by Ms. Firth, he told her he is a lawyer and she demanded to see his identification.

It is not disputed that Mr. Pieters produced his identification for the personal respondent. This is most likely, in my view, because he was, in fact, asked by the personal respondent to show that he was a lawyer. ….

The personal respondent personally produced his identification when she asked Mr. Waldron and Mr. Noble for their identification. I find this unlikely. In addition with this being at odds with the testimony of the applicants and Ms. Goswami, the personal respondent testified that she was initially involved with Mr. Noble and Mr. Waldron and that Mr. Pieters was engaged on the telephone. I find it improbable that Mr. Pieters would interrupt his telephone conversation and voluntarily produce identification even before Mr. Noble and Mr. Waldron had responded to the personal respondent’s request of them. The more logical inference, in my view, is that Mr. Pieters was the first one asked for identification.

The Libarian denied speaking loudly to Mr. Pieters, yet her request for identification was heard by all of the witnesses that testified who were in the lounge that being Mr. Pieters, Mr. Noble, Raj Dhir, Monmi Goswami, and Lauri Reesor, who was a relatively far distance away from the initial encounter. The personal respondent initially denied that she spoke in a rude, loud and aggressive manner to Mr. Pieters. This is in contrast to her testimony in cross-examination in which she admitted to speaking loudly. The Tribunal wrote:

I find that the personal respondent asked her questions and interacted with the applicants was aggressive and demanding. Mr. Dhir and 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 applicant 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.

Ms. Goswami a lawyer at the Ontario Human Rights Commission testified that the Librarian was “Carding the racialized people – at that point – something was a little bit off – and that I made a composition of what the room looked like”

The Tribunal found that the reason given to the Black lawyers for questioning their presence in the lawyers lounge was motivated by race and colour.

I find that the applicants have established a prima facie case of discrimination. There were a number of people in the lounge on May 16 who would have been unknown to the personal respondent. The applicants and Mr. Walrond would have been the only Black men and the only people she chose to question. The personal respondent interrupted her planned trip to the robbing room to stop and question the applicants and proceeded to do so in an aggressive and demeaning manner. No one else in the lounge was questioned, including two White women and another racialized male who would have been unknown to the personal respondent. These facts are sufficient to require the respondents to provide an explanation for their action to support their position that the decision to question the applicants was not tainted by race and colour.

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.

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

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 tained by consideration of their race and colour.

The Peel Law Association, with the majority of its members being lawyers, has been in existence since 1947.  In that more than six decade period, we as members of Canadian society have witnessed various advancements in the area of Human Rights.  Notwithstanding these advancements and that the staff of the Peel Law Association has to interact with individuals from various racialized groups on a daily basis, it still did not have an Anti-discrimination Policy in effect, nor did it have any internal complaint system to deal with discrimination and harassment until May 27^th of this year, 2009.  At this hearing, the respondent, Melissa Firth, testified that the recent implementation of this Anti-discrimination Policy was a direct result of this case and that she never received any anti-discrimination training of any kind prior to the incident in question.  Accordingly, it would be more than reasonable to assume that but for this case, the Peel Law Association would still be without an Anti-discrimination Policy and that is absolutely inexcusable and egregious.   

The byproduct of this gross disregard by the Peel Law Association to establish an environment that facilitates inclusion and adherence to existing human rights laws is that its employees were ill-equipped to adequately deal with issues pertaining to discrimination as they were not provided with the training necessary to function effectively in a multi-cultural society.

This is one of the first and few decisions that deal frontally and directly with the disparate treatment that Black lawyers and Black professionals complain of privately that these experience in their professional sphere.

Peel Law Association was required to pay compensation. Selwyn Pieters proceeds of the compensation will be donated to the Black Law Students’ Association of Canada.

Coverage in the Toronto Star:  Amy Dempsey  Lawyer wins racial discrimination case- http://www.thestar.com/news/article/902582--lawyer-wins-racial-discrimination-case

Coverage in the National Post: Lawyer wins discrimination case against Peel Law Association ‎ - National Post http://www.nationalpost.com/news/Lawyer+wins+discrimination+case+against+Peel+Association/3934545/story.html