Vancouver Area Network of Drug Users v. BCHRT, 2015 BCSC 534 - Causal Nexus Rejected

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 April 24, 2015

In Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal, 2015 BCSC 534, the Honourable Madam Justice Sharma had cause to consider the test for establishing discrimination.

Of course, in Moore v British Columbia (Education) 2012 SCC 61, [2012] 3 S.C.R. 360, Justice Abella stated that to demonstrate prima facie discrimination, claimants must show:

1. That they have a protected or equivalent characteristic; 
2. That they experience an adverse impact, and 
3. That the characteristic was a factor. 

In Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.), the Court of Appeal reject the requirement of a "causal nexus" or "Causal connection" or causal link instead holding that:

[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. (...)
[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 issue of causal link, causal connection or causal nexus was also recently argued on January 23, 2015 at the Supreme Court of Canada in Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (decision reserved), as that is a requirement to prove discrimination under the civil law of Quebec.

I was therefore quite interested in reading the decision of Madam Justice Sharma, particularly paragraphs 59 and 60 that squares with Moore and Pieters:

[59]           In my view, there is a significant difference between proving personal characteristics are “causally” connected to adverse treatment versus them being “a factor” in the adverse treatment. Requiring claimants to prove a causative connection elevates the legal burden on the claimant beyond what the SCC stated in Moore and would be inconsistent with the equality jurisprudence under the Charter.
[60]           The essence of discrimination is the disproportionate impact of a law or activity and, therefore, the focus of the legal test must also be on effects. The definitions of the prima facie test in both Coast Mountain and Moore do require claimants to demonstrate a relationship between the personal characteristics and adverse treatment. But proving a causative connection imports a “cause and effect” analysis; the claimant would need to establish that the protected ground was the factor that caused the adverse treatment, rather than simply a factor. This neglects the practical reality of situations in which discrimination is found. Adverse impacts are often the result of a constellation of factors, where the protected grounds are but one factor, but a factor nonetheless. The test in Moore properly recognizes this distinction. Furthermore, undertaking a “cause and effect” analysis could improperly focus on the design or intention underlying the actions or system at issue. As discussed below, this would be a further source of potential error, as one does not need to prove an intention to discrimination to find a violation of the Code.

I am not sure where the the confusion lies with some courts and/or tribunals, however, the common law is settled requirement of such a “causal link” is inconsistent with prevailing contemporary burden of proof in discrimination in Canada whereby it is only necessary to prove that a prohibited ground of discrimination is a factor in the challenge act or practice  (O’Malley v. Simpson-Sears, [1985] 2 SCR 536 at 28; Saskatchewan HRC v. Whatcott [2013] 1 SCR 467 at 54; Moore v. British Columbia [2012] 3 SCR 360 at 33).

Copyright © 2015 Selwyn Pieters. All rights reserved. Please use citation if using or relying on my analysis.

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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).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20  and Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (2015 - decision reserved); 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.), McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 376 D.L.R. (4th) 258 (CA) and most recently R. v. Steele (2015) ONCA 169 (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. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and 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 has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.).

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

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 currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

Update: CRARR granted intervener status by the Supreme Court of Canada in Latif v. Bombardier

On October 16, 2014, Mr. Justice Wagner of the Supreme Court of Canada ruled on applications for leave to intervene in Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (Quebec) (Civil) (By Leave) by six intervenors:

AND UPON APPLICATION by the South Asian Legal Clinic of Ontario for an extension of time to serve and file a motion for leave to intervene; 

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion for extension of time to serve and file a motion for leave to intervene of the South Asian Legal Clinic of Ontario is granted.

The motions for leave to intervene of the Canadian Civil Liberties Association, the Canadian Human Rights Commission, the Center for Research-Action on Race Relations, the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association, and the South Asian Legal Clinic of Ontario are granted and the said interveners or groups of interveners shall be entitled to each serve and file a factum not to exceed ten (10) pages in length on or before December 11, 2014.

Interveners shall consult to avoid repetition in their written arguments.

The requests to present oral argument are deferred to a date following receipt and consideration of the written arguments of the parties and the interveners.

The interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.

Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellants and respondents any additional disbursements occasioned to the appellants and respondents by their interventions.The respondent, Bombardier Inc. (Bombardier Aerospace Training Center), is permitted to serve and file a single factum not exceeding five (5) pages in reply to all interveners on or before January 8, 2015.Allowed

The Center for Research-Action on Race Relations, one of the parties granted intervenor status prepared the press release below:

Republished from: <http://www.crarr.org/?q=node/19630> October 17, 2014

Montreal, October 17, 2014 --- The Supreme Court has granted CRARR intervener status in the case Commission des droits de la personne et des droits de la jeunesse et al c. Bombardier et al.

The case involves a Canadian pilot of Pakistani background, Mr. Javed Latif, who in 2004 was offered a job to pilot Bombardier Challenger aircrafts and who was denied training (which took place in Quebec, Canada and Texas, U.S.A) by Bombardier due his being listed as a security threat by U.S. authorities. (In order to access training under a U.S. Federal Aviation Authority license, he had to pass a security check required by the U.S. government’s Alien Flight Students Program given that part of the training was to be offered in the U.S.)

As a result, he was denied employment and had problems finding work as a pilot. He filed a complaint of ethnic discrimination with the Quebec Human Rights and Youth Rights Commission, which upheld his case and brought it before the Human Rights Tribunal. In 2009, the Tribunal ruled in his favour and ordered Bombardier to pay him $385,000 in damages and to cease U.S. national security screening criteria in dealing with Canadian applications for a pilot training license.

Bombardier appealed the ruling to the Quebec Court of Appeal, which quashed the Tribunal's decision in the fall of 2013 and left Mr. Latif with no compensation. The Human Rights Commission sought leave to appeal the Court of Appeal decision to the Supreme Court, seeking the latter’s clarification on a number of issues.

One of these issues, which has far reaching consequences for all discrimination cases in Quebec and elsewhere, is whether the Quebec Court of Appeal erred in requiring evidence of a “causal connection” between ethnic origin and discrimination. Canadian jurisprudence on discrimination usually requires evidence that a ground, such as race or gender, be only a factor in an action or practice, which is a lower threshold to prove discrimination.

While the Quebec Court Appeal requires a “causal connection”, the Ontario Court of Appeal in June 2013 overturned a similar test in last year’s groundbreaking racial profiling case of Peel Law Association v. Pieters. In that case, which involves a highly respected civil rights lawyer Selwyn Pieters and another Black individual being racially profiled by a librarian, the Ontario Court unanimously maintained a more liberal position and ruled against the lower Court’s requirement of a “causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.” In the words of Mr. Justice Juriansz:

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.

The consequences for civil rights are obvious if the more conservative and restrictive standard of proof of the Quebec Court of Appeal is allowed to stand. The case also marks the first time that the Supreme Court will address racial profiling.

CRARR's co-counsels in this case are Mr. Pieters and Aymar Missakila. CRARR is the only Quebec intervener and will make the case for a “consistent, uniform and unequivocal evidentiary requirement for assessing discrimination claims (that) can more effectively establish a harmonized and coherent national approach to guide all equality-seeking individuals and groups as well as all courts and tribunals in Quebec (and) in the rest of Canada, in their common pursuit of the equal protection and benefit of the law.”

“It is a rare opportunity for the Supreme Court, and for our country as a whole, to address racial profiling and discrimination in this decade. We are very honored and grateful to have as co-counsel Mr. Selwyn Pieters, who has made significant contributions to the advancement of racial equality in our justice system and beyond,” said CRARR's Executive Director Fo Niemi.

Other groups that were also granted intervener status are the Canadian Civil Liberties Association, the Canadian Human Rights Commission, the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association, and the South Asian Legal Clinic of Ontario.

CRARR welcomes donations to help defray the costs of this intervention.

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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).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, 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. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and 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 most recently litigated the racial profiling case of:

M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472

M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 11941

M. (R.) v. Toronto Police Services Board, 2013 HRTO 1102

M. (R.) v. Toronto Police Services Board, 2013 HRTO 73

M. (R.) v. Toronto Police Services Board, 2012 CarswellOnt 11158

M. (R.) v. Toronto Police Services Board, [2011] O.H.R.T.D. No. 618, 2011 HRTO 410

M. (R.) v. Toronto Police Services Board, 2011 ONCJ 143, 2011 CarswellOnt 1980, 2011 ONCJ 143, 274 C.C.C. (3d) 272 (Ont. CJ.)

M. (R.) v. Toronto Police Services Board, 2010 CarswellOnt 9121, 2010 HRTO 2349

M. (R.)v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

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 currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

Selwyn Pieters - Lawyer, Notary Public, Legal Commentator

Selwyn Pieters is a frequent guest Legal Analyst for print, radio and television media, locally, nationally and internationally on a wide range of matters touching on human rights, criminal law, civil litigation, defamation law, anti-bullying, gun, drugs and gang sweeps, racial profiling, to name just a few.

Lawyers Appeal of Racial Profiling Judicial Review Decision to be heard by the Ontario Court of Appeal: C55734 Pieters and Noble v. Peel Law Association

For Immediate Release

December 13, 2012

Lawyers Appeal of Racial Profiling Judicial Review Decision to be heard by the Ontario Court of Appeal: C55734 Pieters and Noble v. Peel Law Association

Date: Tuesday December 18, 2012

Time: 10:30 a.m.

Place: Courtroom One, Osgoode Hall, 130 Queen Street West, Toronto

On May 16, 2008, Lawyers Selwyn Pieters and Brian Noble attended with other lawyers representing the Ontario Human Rights Commission, Peel Regional Police and Dufferin Peel Catholic District School Board at the Ontario Court of Justice at the Brampton Courthouse to argue a production motion in F. (K.) v. Peel Regional Police Services Board (2008), 2008 CarswellOnt 5041, 2008 ONCJ 382, a racial profiling case involving Peel Police and the School Board. During the break in proceedings all of the parties entered the Peel Law Association Lounge to await recall by the Applications Judge.

Ms. Melissa Firth, who is a librarian/administrator with the Peel Law Association, approached Mr. Pieters, Mr. Noble and Mr. Paul Walrond (Pieters student) demanding that they identify themselves in the Brampton Courthouse’s Lawyer’s Lounge. Mr. Pieters and Mr. Walrond are Black men who have their hair in the dreadlocked hairstyle. All were dressed in business suits but not gowned as gowning is not required in the Ontario Court of Justice.

The policy of the lounge and library is only lawyers and law students are permitted to use the facilities, paralegals and members of the public are not. There were a number of other individuals in the lounge who had been unknown to the librarian at the time, including two white women (the lawyer and a Human Resources Manager from Peel Police), a racialized man who self-identified as South Asian (lawyer for the Human Rights Commission). These individuals were neither questioned nor asked to produce their identification. [1] The incident was unnecessary and humiliating. The Law Association and Ms. Firth were accused of racial profiling.

 The Human Rights Tribunal of Ontario found that Pieters and Noble rights to be free from racial discrimination were violated under the Human Rights Code in that their race and colour were factors which led to Ms. Firth’s decision to question them and affected the manner in which she questioned and interacted with them. It ordered the Peel Law Association to pay compensation of $2000.00 respectively. The Divisional Court overturned that decision ordering Pieters and Noble to pay $20,000.00 in legal costs to the Peel Law Association and Ms. Firth.

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 case is one of the first racial profiling cases that does not involved the police or other law enforcement agents or officials to be heard by the Court of Appeal.

This is a case where due to the Applicants’ status as human rights litigators they were able to identify, name, challenge and litigate racial profiling in the context of their positions as lawyers being treated differently based on race and colour.

The Court of Appeal decision in this case will be very important to the emerging jurisprudence on racial profiling from which lawyers and other Black professional are not immuned: “The legal profession has made no concerted effort to rid itself of the racism inherent in the practice.  As the evidence in this case illustrates, racialized lawyers continue to face barriers not experienced by their colleagues.” Benchers Clayton Ruby and Constance Backhouse writing in the recent Law Society of Upper Canada, Appeal Panel decision of Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 3.

 

There are four intervenors arguing in this case:

 

Ontario Human Rights Commission,

Just Society

South Asian Law Association and

B'Nai Brith Canada

For more information, please contact:

Selwyn A. Pieters, B.A., LL.B., L.E.C.

Lawyer & Notary Public

 

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 Resources:

Pieters v. Peel Law Association, 2010 HRTO 2411 (CanLII) — 2010-12-03

Human Rights Tribunal of Ontario — Ontario

lounge — personal — identification — library — racially profiled

Peel Law Association v. Pieters, 2012 ONSC 1048 (CanLII) — 2012-02-13

Divisional Court — Ontario

lounge — prima facie case of discrimination — library — complainants — differential treatment

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.

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[1] Pieters had attended that lounge numerous times prior to 2008 including while acting as counsel in high profile cases such as the manslaughter and  criminal negligence causing death case of R. v. Cox and Klass 2005 CarswellOnt 6313 (Ont. CJ.) and the firearms case of R. v. Egonu 2007 CarswellOnt 5700 (SCJ).

Case Analysis on social media, the modern workplace and Human Rights related harassment: Taylor–Baptiste v. OPSEU

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer and Notary Public of the Bars of Ontario, Guyana and Trinidad

Facts

The facts of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 have not been repeated in this analysis. The facts as accepted by the Tribunal could be found in paragraphs 4 – 19 of the decision.

The Issue

The question of law decided by the Tribunal is whether the content of the blog posts violated the protections in section 5(1) and 5(2) of the Human Rights Code, R.S.O. 1990, c.H.19 (“the Code”) against discrimination with respect to employment and harassment in the workplace on the grounds of marital status and/or sex:

 While the facts are straightforward, they raise difficult and challenging issues and conflicting interpretive values. In what circumstances are statements outside work hours, on line, “with respect to employment” or “in the workplace.”? In what circumstances, if any, can a manager make a Code claim against the Union or its leaders for statements directed at union members about the workplace relationship?[1]

Legal Reasoning

The decision turned principally on undisputed facts and law.[2]  It was argued on behalf of the Applicant that a "blog is an extension of the workplace, and that social media, including blogs, Facebook and Twitter are integrally woven into the fabric of the modern workplace."

[25] I agree with the applicant that employers can discipline employees for actions they take in cyberspace, and that the Code may apply to workplace-related postings on the internet. It is not open to serious doubt, in my view, that in 2012 postings on blogs and other electronic media may be part of or an extension of the workplace and that the Code may apply to them.

The Applicant also argued that:

The Code does not have a hierarchy of those deserving of protection and those that do not based on whether they are frontline employees, supervisors, managers, union presidents or directors.“Every person” in an employment relationship therefore captures the relationship and interaction between a local president of a union and a manager who seeks to bring a human rights application before the Tribunal.

The Tribunal applied a purposive and contextual interpretation of section 5 of the Code.[3]The Tribunal found that the blog comments were not harassment ‘in the workplace’ under section 5(2), even given its broadest interpretation. This was because the posts ‘were made on a blog identified with the union that, although open to the public, was directed at communication between union members and their leadership.”[4] In other words, the Tribunal is saying that for section 5(2) to apply to postings in cyberspace, there must be a sufficient nexus or connection. The Tribunal was less clear about what exactly would constitute a sufficient connection.

The Applicant in her submission submitted that "to establish that a blog, a facebook group or any other form of social media form part of the workspace a nexus has to be established between the employer and the errant employee in cyberspace and this could be done by quantification of the number of explicit references, quantification of the number of named individuals, direct/indirect references and a corollary assessment of the employer’s policy practice in this area and response to the particular incident are key starting points."

While it is not mentioned anywhere in the Tribunal's judgment, on October 27, 2011, the Tribunal dismissed a Request for Order during proceedings in which “the Applicant request the following Orders in advance of the proceedings to be dealt with in writing:

                                                               i.      That the Respondents disclosed to the Applicant, through her counsel: 

a) The IP addresses and email addresses for the anonymous posters;

b) Raw data logs that showed the visitors to the Blog at the material time the material were posted;

c) All deletions and updates to the Blog for the material time.”

The Tribunal said at the time this evidence was tangential to the main issues - yet the absence of this very evidence was significant to whether or not the postings originated "in the workplace."

In considering whether the respondent’s actions constituted discrimination under section 5(1) of the Code, the Tribunal deemed it necessary to consider all relevant circumstances, including:

1. the seriousness of the conduct;
2. their significance;
3. their effect on the workplace;
4. the role of the person making them;
5. the effect on the applicant; and
6. the reaction of the respondent to any concerns raised

The Tribunal held that Mr. Dvorak’s comments were protected by the right to freedom of expression in section 2(b) of the Canadian Charter Rights and Freedoms and also the right to freedom of association in section 2(d) of the Charter.[5]  “This case involves an issue of competing rights” Ms. Taylor – Baptiste’s Code rights to freedom from discrimination with respect to employment and harassment in the workplace and the union’s core Charter rights to express themselves on matters of concern in the union-management relationship.”[6]

Balancing the competing rights of the applicant and the respondent, the Tribunal assessed Mr. Dvorak’s rights against the appellants right to freedom from discrimination with respect to employment and harassment in the workplace: “The Tribunal has emphasized that ambiguity in the scope of Code rights should be resolved in favour of protecting matters at the core of Charter rights and freedoms.”[7] The Tribunal disagreed that merely mentioning the applicant by name “as being the spouse of Mr. Gray, or as being the ex-spouse of Mr. Taylor-Baptiste” or simply raising concerns about nepotism without accompanying denigrating or humiliating comments, was sufficient to amount to discrimination on the basis of marital status.[8] 

The Tribunal was concerned about “the use of sexist language to convey the point of nepotism.” It found that the Respondent “drew upon frequently used sexist stereotypes about women in positions of power ‘sleeping their way to the top” through suggesting that her qualifications for the job was ‘intimate knowledge of another deputy.’” The Tribunal also found that the comment “if you don’t know the answers to something this simple you should call your boyfriend over at his office” draws upon the stereotype that women get ahead through their relationships with more competent ‘boyfriends.’”[9] It found that the comment“ ...let Ms. Baptiste know that if she needs any help making a decision in the future, I’m sure he (the Applicant’s ex-husband) would help her. Maybe she should go back to her maiden name, or Gray, so as not to besmerch (read besmirch) the good ‘union’ name of Taylor-Baptiste” “also raised issues of sexism.”[10] “Then Tribunal went on to find that “this issue and suggestion targets her as a woman because it was traditionally women who were expected to change their names upon marriage. This is an issue of gender and it singles her out as a woman.”[11]

The Tribunal then observed that Mr. Dvorak failed to consider or address at that time the ways in which his posts could violate the Code or hurt individuals.”[12] 

Despite this, the Tribunal found that respondents did not discriminate against the applicant.  The Tribunal assessed the following key factors to reach the decision:
Mr. Dvorak’s conduct as a Union President: as an active participant on behalf of the union in a process of restoration of a workplace that had been poisoned through racists hate mail; the Tribunal accepted the respondent’s evidence that the Mr. Dvorak had genuine concerns about nepotism and his comments were directed at union membership and related to the union-management relationship.[13]

1. Frequency of the posts:  the applicant was only mentioned once in the blog even though the blog was publicly accessible for a month; the tribunal also mentioned that the posts lost significance as more issues were raised.[14]
2. Union comments on workplace issues are constitutionally protected expressions of opinion and exercise of freedom of association and the union’s right to operate independently of the employer. [15] “Strong criticism from the union is often inherent in being a manager in a tense unionized workplace.”[16]

Based on these factors, the Tribunal held that ‘while they [the blog posts] were relied upon sexist language, they were not gratuitous attacks unrelated to union business.” [17] The Tribunal stated that the most important factor was the fact that “union comments on workplace issues are constitutionally protected expression of opinion and exercise of freedom of association, and close to the core of those rights.”[18]

The Tribunal in weighing the competing rights in this case found that “most significant to my decision in this case are that the postings are tied to communications to the membership on issues of labour-management relations and the absence of Code-related effects in the workplace.”[19]

As a result of these findings, the Tribunal found that the applicant was not harassed and not discriminated against by the Respondents and ordered that the Application be dismissed.

No decision has yet been made on whether or not the Applicant will be judicially reviewing this decision.

Selwyn A. Pieters -  Lawyer and Notary Public; 2012 All rights reserved

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[1] Taylor – Baptiste v. Ontario Public Services Employees Union 2012 HRTO 1393, para 2.

[2] See para. 3 of the judgement

[3] See para. 21 of the judgement

[4] See para. 26 of the judgement

[5] See paragraph 29 of judgment. The Tribunal placed reliance on the recent Supreme Court decision in Fraser v. Ontario (Attorney General), 2011 CarswellOnt 2695; 2011 SCC 20 as support for this proposition. It was argued that the conduct engaged in by Mr. Dvorak “was not to be considered collective bargaining towards a collective agreement.”

[6] See paragraph 36 of the judgment

[7] Ibid.

[8] See paragraph 30 of the judgment

[9] See paragraph 31 of the judgment

[10] See paragraph 34 of the judgment

[11] Ibid.

[12] See paragraph 35 of the judgment

[13] See paragraph 35 and 37 of the judgment

[14] See paragraph 36 of the judgment

[15] See paragraph 37 of the judgment

[16] See paragraph 39 of the judgment

[17] See paragraph 40 of the judgment

[18] Ibid.

[19] See paragraph42 of the judgment