Whilst racial profiling against African Canadians, Aboriginals and other racial minorities in the provision of goods, services and facilities is widespread and pervasive, there is a dearth of racial profiling litigation in Canada.
This decision is significant and very important as it is one of the first racial profiling cases that does not involved the police or other law enforcement agents or officials that was heard by the Court of Appeal.
The Court of Appeal decision in this case is important to the emerging jurisprudence on racial profiling from which lawyers and other Black professional are not immune.
Thirteen lawyers put in appearance in the appeal on behalf of various parties. The decision focus on the legal concept of deference to the first level finder of facts as well as the test for discrimination:
[53] The Divisional Court set out the following test for discrimination. The Court said:
In order to prove a prima facie case of discrimination, there must be evidence to support the following findings:
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.[54] The Court did not indicate from where it derived this test. The term "causal nexus" does not appear in Tranchemontagne, which the Divisional Court cited before setting out this test. The test is not one that human rights tribunals have traditionally applied.
[55] The traditional definition was applied in Moore, where Abella J. said at para. 33:
As the Tribunal properly recognized, to demonstrate prima faciediscrimination, applicants 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.
[56] Lang J.A., in this court's decision in Shaw, at para. 14, said the following three elements were required to establish a prima facie case:
1. That he or she is a member of a group protected by the Code;
2. That he or she was subjected to adverse treatment; and
3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.
[57] Lang J.A. drew this formulation from the decision of the Divisional Court majority in Shaw, which was cited by the Divisional Court in this case.
[58] Neither the Moore nor Shaw statements of the test use the word "nexus". In fact, Abella J. does not use the word "nexus" at all in her reasons in Moore. InShaw, in discussing her articulation of the test, Lang J.A. uses the terms "nexus", "connection" and "factor" interchangeably.
[59] While the word "nexus" is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a "connection" between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a "factor" in the adverse treatment.
[60] I do not think it acceptable, however, to attach the modifier "causal" to "nexus". Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.
[61] I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case. This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination.
Background Information
Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII) (Vice Chair B. Eyolfson); Noble v. Peel Law Association, 2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII) (Vice Chair K. Joaquim); Pieters v. Peel Law Association, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters, 2012 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 (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) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204 (Cronk, Juriansz and Pepall JJ.A.)
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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 racial discrimination / harassment / profiling cases 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. His current cases include the competing rights case of Taylor-Baptistev. Ontario Public Service Employees Union, 2012 HRTO 1393 that is at the reconsideration stage at the HRTO; Roachet 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 is also acting as co-counsel for the families of three deceased persons killed during a civil demonstration in Linden, Guyana.
