Review of Selwyn Pieters, Pieters Law Office more important, challenging and interesting work in 2015

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)
Created December 28, 2015

This is a review of my year of litigation. In 2015 my journey through litigation took my through several practice areas including education law, human rights, police law, criminal law, civil litigation, administrative, constitutional and public law. I won some, I lost some, I resolved some and other cases were litigated on principles so that whether lost or won, the important issue was the principle and standing up for justice.

Constitutional and Public law

McAteer et al. v. Attorney General of Canada 36120 – Constitutional – freedom of expression – Citizenship Oath to Queen Elizabeth II  - Leave to Appeal to the Supreme Court of Canada was denied. See, McAteer, et al. v. Attorney General of Canada, 2015 CanLII 8563 (SCC). See also McAteer v. Canada (Attorney General), 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 242 A.C.W.S. (3d) 772, 27 Imm. L.R. (4th) 216, 376 D.L.R. (4th) 258 affirming McAteer, Topey, Dror-Natan v. Canada (Attorney General)  2013 CarswellOnt 13165, 290 C.R.R. (2d) 332, 20 Imm. L.R. (4th) 121, 117 O.R. (3d) 353, 2013 ONSC 5895, E.M. Morgan J. (Ont. S.C.J.). See also Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 3521 (ON S.C.). The applicants' position in this case was the Oath to the Queen in the Citizenship Act violates sections 2(a) and (b) Charter of Rights and Freedoms and cannot be saved by section 1. So the Oath Challenge failed. Mr. Dror Bar-Natan took the oath of citizenship in November 2015 and immediately renounced it upon receiving his citizenship certificate.

Taylor-Baptiste v. OPSEU is one of the more significant labour and employment law cases in 2015. It was argued at the Court of Appeal by my friend Ranjan Agarwal. http://www.casselsbrock.com/…/Top_10_Employment___Labour_La… I argued the case at the Human Rights Tribunal and my colleague Ranjan Agarwal argued at the Divisional Court and the Court of Appeal. The Ontario Court of Appeal dismissed the appeal in  in the case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 affirming  Taylor-Baptiste v. Ontario Public Service Employees Union, 2014 ONSC 2169 (Div. Ct.) and Taylor-Baptiste v. Ontario Public Service Employees Union et al, 2014 ONSC 5218 (costs). Counsel at the Court of Appeal and Divisional Court was Ranjan Agarwal and Amanda McLaughlin of Bennet Jones. At the Human Rights Tribunal I 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. The case is now at the Supreme Court of Canada on an Application for Leave to Appeal

Human Rights Law

In January 2015 Lawyers for the Center for Research-Action on Race Relations, the National Council of Canadian Muslims, the Canadian Muslim Lawyers Association, and the South Asian Legal Clinic of Ontario intervened at the Supreme Court of Canada in a case of alleged racial profiling of a Pakistani Pilot Javed Latif. Human Rights lawyers including Preet K. Bell, Ranjan K. Agarwal, Selwyn A. Pieters, Faisal Bhabha, Khalid M. Elgazzar, Faisal Mirza, Aymar Missikala participated as counsel in Quebec (Commission des droits de la personne et desdroits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace TrainingCenter), 2015 CarswellQue 6297, 2015 CarswellQue 6298, 255 A.C.W.S. (3d) 79, 2015 SCC 39 (CanLII). The Supreme Court of Canada rendered its decision in July 2015 dismissing the appeal but upholding the reasoning of the Ontario Court of Appeal in the 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.).

Rohan Roberts application is in the early stages of the Human Rights Tribunal of Ontario processes. The complaint is alleging racial profiling in the provision of services by the Toronto Police Services Board, Ryan D’ena and Andrew Keown. This is a walking whilst Black case involving allegations of police harassment, brutality and racial profiling.

The decision on the merits in Lewis v. Toronto Transit Commission was released. Mr. Lewis, an African-Canadian male, filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment because of race, colour, place of origin and reprisal. The application was dismissed: Lewis v.Toronto Transit Commission, 2015 CarswellOnt 3092, [2013] O.H.R.T.D. No. 2137, 2015 HRTO 256, CHRR Doc. 15-0756 (Whist).

Criminal Law

I am involved in drugs, guns and gang case "Project Rx". In that case over 70 persons were arrested by police officers in a joint forces operation. The preliminary Inquiry was completed in October 2015 and my client K.C. was discharged. The issue in that case was possession of firearms and drugs. 

Recently I was counsel in two cases where Black men in the Jane and Finch communities in Toronto were harassed then when they question that harassment, they were terrorized, brutalized and to add further injury charged with assault police, resist arrest or obstruct police. The charges were withdrawn in both instances of Michael Duru and Rohan Roberts. When such instances occur, we taken the view that it is a total abuse of their office. And, as I said before, using the courts and the justice system inappropriately to legitimize racial profiling. 

On March 16, 2015 the Court of Appeal decision in the long-standing racial profiling case of R. v.Steele, 2010 ONSC 5397 released by Justice Kathryn Feldman, Justice Janet Simmons and Justice Gladys Pardu: C53511 - R. v. Steele, 2015 CarswellOnt 3334, 2015 ONCA 169, [2015] O.J. No. 1253 (Ont. C.A.). Leave to the Supreme Court of Canada denied:  R. v. Steele, 2015 CanLII 43092 (SCC). In this case, the Court of Appeal ruled that a passenger has no rights to privacy in a motor vehicle during a traffic stop.

Civil Litigation

Bogiatzis v. Davis - Client died unexpectedly in the middle of preparation for examination for discoveries. This was quite shocking.

CV-14-512539 - Lam v University of Western Ontario Board of Governors, 2015 ONSC 5281 (CanLII), <http://canlii.ca/t/gkvc2>    and Lam v. The University of Western Ontario Board of Governors et al., 2015 ONSC 1642 (CanLII), <http://canlii.ca/t/ggplq>. Two attempts by the Defendants to have the claim struck without leave to amend failed. The matter now moves to discoveries.

CV-13-491631-00A1 P.P., v.OCSDA v. J. H, T. F. and A. R. litigation involving minors on a field trip arranged and supervised by their school.

Police Law (hybrid Human Rights)

In Afzal v. Regional Municipality of Peel Police Services Board The applicant, a police officer filed an Application under s. 34 of the Human Rights Code, alleging discrimination with respect to employment because of race, colour, place or origin, ethnic origin. He later retained counsel to assist him with the process.

Bartol v. Waterloo Police Services Board  - This was an application where a Dispatch officer alleged discrimination against her in employment on the basis of disability contrary to sections 5(1) and 9 of the Human Rights Code. The application also alleged that the employer took retaliatory action against her in contravention of section 8 of the Code.

Education Law

I represented former Toronto District School Board (TDSB) Director Christopher "Chris" Spence before the University of Toronto Tribunal in respect to plagiarism allegation in respect to his PhD Thesis. 

Dispute Resolution

For 2015 I have settled numerous cases through the mediation process at the Human Rights Tribunal of Ontario. Other cases involving employment law were settled in direct negotiations with employers' counsel.

International Law

Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana. The Government of Guyana terminated the evidentiary phase after the elections of May 2015. Closing arguments were made in July 2015 and the final report may be released on January 31, 2016.

On April 20, 2014, when the Guyana Trades Union Congress (GTUC)] announced its participation in the Walter Rodney Commission of Inquiry, it concluded its press statement by saying “Guyana and Guyanese deserve closure to this chapter of our history and an end brought to use of Rodney’s name as a wedge. The GTUC is prepared once again to play its part to the achievement of this end.” The Walter Rodney Commission of Inquiry took up a lot of my time and efforts in 2015. The fact remains that the taxpayers spent $400 Million dollars. Further, the fact remains that a lot of time and effort of a lot of people were put into that Commission. As well, the fact is there needs to be closure for the Rodney Family, the Burnham Family, the Smith's Family, people like Ogunseye (who faithfully attended most of the proceedings including closing arguments), The PNC persons (who felt their characters were at issue) and many others who need that aspect of Guyanese history to be done and historically wrapped up. The sensible thing is to provide the time required to complete that report. The Commissioners are paid to Inquire and Report. Its taxpayers money, let it be done. Presenting the report at [January] month's end closes the matter..... We can then move on [in] 2016 without the Rodney name being used as a wedge, as Lincoln Lewis describes it.

Supreme Court of Canada Releases Significant Decision on Proving Discrimination based on Race/Ethnicity (CDPDJ AND LATIF V. BOMBARDIER)

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)
Created July 23, 2015

“Discrimination can take a variety of forms. Although some of them are easy to identify, others are less obvious, such as those that result from unconscious prejudices and stereotypes or from standards that are neutral on their face but have adverse effects on certain persons. The Charter of human rights and freedoms, CQLR, c. C‑12 (“Charter”), prohibits the various forms of discrimination and creates a remedy for victims of discrimination.”  Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. 2015 SCC 39, para. 1.

The Supreme Court has release its decision in Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. 2015 SCC 39 a case of racial/ethnic discrimination in employment that will have national ramifications for all discrimination cases. The significant issue of importance to human rights practitioners and litigants is "whether Court of Appeal erred in requiring proof of causal connection between ethnic origin and exclusion?" In other word, do the modified "causal" which is imported from the Civil Code makes it virtually impossible to prove discrimiantion by importing a standard that has no place in human rights law?

The facts in this case revolves around a Canadian pilot of Pakistani background, Mr. Javed Latif, who in 2004 was offered a job to pilot Bombardier Challenger aircrafts and 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, Mr. Latif 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 using U.S. national security screening criteria when 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. The Human Rights Commission obtained 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 is whether the Quebec Court of Appeal erred in requiring proof of a “causal connection” between the prohibited ground of ethnic origin and the discrimination experienced by the victim. Canadian jurisprudence on discrimination usually merely requires evidence that a prohibited ground, such as race or gender, was one of the factors in a discriminatory action or practice; this is a lower threshold to prove discrimination than that of “causal connection”.

In 2013, the Ontario Court of Appeal rejected a similar test in the ground-breaking racial profiling case of 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.). In that case, which involved the racial profiling of two Black lawyers (one of whom was prominent human rights lawyer Selwyn Pieters) and a student, two of whom had dreadlocks,  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.”

As the only Quebec intervener in the Bombardier case, Center for Research-Action on Race Relations (CRARR) called for a “consistent, uniform and unequivocal evidentiary requirement for assessing discrimination claims … to guide all equality-seeking individuals and groups as well as all courts and tribunals in Quebec (and) in the rest of Canada.”

In upholding the decision of the Court of Appeal, the Supreme Court of Canada cited with approval Mr. Justice Juriansz's reasoning in Peel Law Association v. Pieters as well as the reasoning in Moore v. British Columbia (Education), 2012 SCC 61 (SCC), as the appropriate test required to prove discrimination:

[49]                          In a recent decision concerning the Human Rights Code, R.S.O. 1990, c. H.19, the Ontario Court of Appeal found that it is preferable to use the terms commonly used by the courts in dealing with discrimination, such as “connection” and “factor”: Peel Law Assn. v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 80, at para. 59. In that court’s opinion, the use of the modifier “causal” elevates the test beyond what is required, since human rights jurisprudence focuses on the discriminatory effects of conduct rather than on the existence of an intention to discriminate or of direct causes: para. 60. We agree with the Ontario Court of Appeal’s reasoning on this point. Moreover, this Court used the term “factor” in a recent decision concerning British Columbia’s human rights code: Moore, at para. 33.

 [50]                          It is more appropriate to use the terms “connection” and “factor” in relation to discrimination, especially since the expression “lien causal” has a specific meaning in the civil law of Quebec. In civil liability matters, the plaintiff must establish on a balance of probabilities that there is a causal relationship between the defendant’s fault and the injury suffered by the plaintiff: J.‑C. Royer and S. Lavallée, La preuve civile (4th ed. 2008), at para. 158. The Quebec courts have defined this causal relationship as requiring that the damage be a logical, direct and immediate consequence of the fault. This rule therefore means that the cause must have a [translation] “close” relationship with the injury suffered by the victim: J.‑L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile (8th ed. 2014), at para. 1‑683.
[51]                          A close relationship is not required in a discrimination case under the Charter, however. To hold otherwise would be to disregard the fact that, since there may be many different reasons for a defendant’s acts, proof of such a relationship could impose too heavy a burden on the plaintiff. Some of those reasons may, of course, provide a justification for the defendant’s acts, but the burden is on the defendant to prove this. It is therefore neither appropriate nor accurate to use the expression “causal connection” in the discrimination context.

 [52]                          In short, as regards the second element of prima facie discrimination, the plaintiff has the burden of showing that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference. Finally, it should be noted that the list of prohibited grounds in s. 10 of the Charter is exhaustive, unlike the one in the Canadian Charter : City of Montréal, at para. 69.

On the issue of social context evidence, the Supreme Court of Canada held that:

 It cannot be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group is necessarily based on a prohibited ground under the Charter. In practice, this would amount to reversing the burden of proof in discrimination matters. Evidence of discrimination, even if it is circumstantial, must be tangibly related to the impugned decision or conduct. As a result, it was not open to the Tribunal in this case to conclude that B’s decision constituted prima facie discrimination under the Charter. The conclusion in this case does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter. This conclusion flows from the fact that there is simply no evidence of a connection between a prohibited ground and the foreign decision in question.

This again was emphasized in Pieters as well:

[121]   In this case, I am not persuaded that any unfairness resulted from the Vice-Chair’s reference to Nassiah. The reference did not affect his disposition of what I regard to be the main issue in the case—whether the appellants’ race and colour were factors in their selection for questioning. At most they played a minor role in his finding that their race and colour were factors in the manner in which they were questioned. After referring to Nassiah, the Vice-Chair was careful to point out he had “already” made findings about the manner in which the librarian had questioned the appellants. The librarian had “interrupted [the first appellant] while he was on the telephone and, it appears, did not introduce herself to the applicants and [the articling student]”. Furthermore, “[f]rom all the evidence, including the personal respondent's testimony of how she generally carried out this function”, the Vice-Chair concluded that “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”. These findings of fact relate to the particular encounter in this case; they are not based on generalizations drawn from social science.

Unfortunately for Mr. Latif the Court held that he had not discharged the legal burden of proving discrimination on a balance of probabilities, and that a prohibited ground of discrimination is one factor involved in the decisions or actions on the part of the employer that are alleged to constitute a violation of the Quebec's Charter.

Mr. Selwyn Pieters, co-counsel for CRARR, and CRARR's Executive Director Fo Niemi will be available for comment on the Supreme Court decision.

- 30 -

Information: Selwyn Pieters: (416) 787-5928
Fo Niemi: (416) 808-6119
CRARR

JAVED LATIF / COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE,. v . BOMBARDIER INC., ET AL.

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 January 24, 2015

On Friday January 23, 2015, a mild Winter day in the National Capital Region of Canada, the  racial profiling case of Mr. Latif was argued at the Supreme Court of Canada. This was the first time in the Supreme Court's history that it was hearing a case of racial profiling. The Court heard legal arguments from the Appellants, Respondents and several interveners including the Center for Research-Action on Race Relations, 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. It has reserved its decision and shall issue a written decision sometime in the future.

Representing the interest of the Center for Research-Action on Race Relations were Selwyn A. Pieters and Aymar Missikala. Fo Niemi the Executive Director was present in Court.

Significant to this case is the need for a clear and consistent test for victims and respondents, and for a harmonized and coherent national approach for discrimination. The two questions in issue that require an affirmative answer:
1) Does the requirement of a “causal link” between a challenged discriminatory act or practice and a prohibited ground of discrimination, especially discrimination based on race or ethnicity, effectively constitute the requirement of proving an intent to discriminate and direct discrimination?

L-R  Preet K. Bell, Ranjan K. Agarwal, Selwyn A. Pieters,  Faisal
Bhabha, Khalid M. Elgazzar, Faisal Mirza, Aymar Missikala

2) Is the requirement of such a “causal link” inconsistent with prevailing contemporary standards of evidence of 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?

There was strong showing of Black, Muslim, Arab and South Asian Lawyers that appeared before the seven member bench of Judges to ensure that a large, liberal and purposive approach to the test for a prima facie case is upheld by the Court.

In the Factum of the Center for Research-Action on Race Relations we set out an overview of the Latif v. Bombardier Inc. (Bombardier Aerospace Training Center) case as follows:

Javed Latif is a naturalized Canadian citizen of Pakistani origin and Muslim. He retains his dual citizenship. He has been a pilot with both American and Canadian licenses for over 25 years. In 2004, he applied to Bombardier for a pilot training program that would allow him to operate a Challenger 604 aircraft. Bombardier’s Aerospace Training Center has two training facilities, one located in Montreal and the other, in Dallas, Texas. Despite his previous training in the U.S., Mr. Latif was denied security clearance by U.S. authorities this time, which denied him training by the U.S. Federal Aviation Agency, on the grounds that he constituted a national security threat. Mr. Latif could not appeal the denial as there was no procedure for non-U.S.citizens and was therefore denied training by Bombardier under his Canadian pilot’s license as he was also considered as a threat to aviation in Canada.

He filed a complaint with the Commission des droits de la personne et des droits de la jeunesse for discrimination in employment based on ethnic or national origin.  The Commission brought the case before the Quebec Human Rights Tribunal which ruled that there was a prima facie case of discrimination as Bombardier’s denial of Mr. Latif’s application relied solely on U.S. authorities’ national security-based decision and in part, on business considerations, including the possible revocation of its U.S. training certification, and one particular manager’s opinion.  The Tribunal ordered compensation for lost salaries, moral and punitive damages, and the cessation of the company’s discriminatory practice. 

Bombardier appealed to the Court of Appeal, which struck down the Tribunal decision on several grounds.[1] The Court found no clear evidence of differential treatment directed at Mr. Latif since Bombardier relied on official and legitimate information from U.S. authorities to reach its decision.  The Court also ruled that while there was no need to establish an intent to discriminate, a “causal link” (“lien causal”) between the challenged exclusionary practice and a prohibited ground of discrimination is an “essential ingredient to a conclusion of discrimination”[2], which was not made in this case.[3]  More specifically, the Court noted that the U.S. security clearance applies to all non-U.S. citizens and did not “specifically target” Arabs and Muslims.[4] In the Court’s opinion, the Tribunal erred by relying on circumstantial evidence of discrimination or racial profiling, because the evidence in the case did not include facts that are “serious, precise and concordant”, as required by Quebec civil law.[5] In fact, the Court clearly states that evidence can not result from suspicions or speculations[6] and that the expert testimony in support of the plaintiffs’ claim lacked “pertinence and probative value.”  In other words, the circumstantial evidence to allow for an inference of discrimination and profiling in this case does not hold.[7]

---

[1] Bombardier inc. c. Latif, 2011 QCCA 1611 (CanLII)

[2] At para. 98 and 100.

[3] At para. 103 and 142.

[4] At para. 125.

[5] At para. 141 and 142.

[6] At para. 106.

[7] At para. 139.

As an applicant in the Peel Law Association v. Pieters, 2013 ONCA 396 I was uniquely situated to argue issues that arose from that case and provide an insider-outsider view on the issue of racial profiling and its interpretative principles. En effet, Me Pieters, étant unilingue anglais, est celui qui a plaidé la cause dans l’affaire Peel Law Association de la Cour d’appel de l’Ontario.  Cet arrêt est éminemment pertinent puisqu’il provient de la plus haute Cour de l’Ontario d’une part, et d’autre part, il est en contradiction  flagrante avec l’arrêt de la Cour d’appel du Québec dans la présente affaire ayant mené les parties devant la Cour suprême.  En effet, les deux arrêts édictent une norme différente en matière de fardeau de preuve de discrimination.  Tandis que la Cour d’appel de l’Ontario estime qu’il suffit à une victime de prouver que l’un des motifs interdits a été un facteur dans l’acte reproché pour qu’il y ait discrimination, la Cour d’appel du Québec exige un lien de causalité entre le motif et l’acte reproché.  Me Pieters sera le mieux placé pour expliquer la perspective de la Cour d’appel de l’Ontario dans une province de tradition de Common Law et dans la langue qu’il maîtrise.

My oral arguments to a seven member panel of the Supreme Court of Canada on behalf of the Center for Research-Action on Race Relations were very to the point in relation to the issue of why the use of causal nexus has no place in human rights law.

Thank you Chief Justice and Justices for allowing us to orally present today on the very important matter to human rights litigants nationally.

The Center for Research-Action on Race Relations (CRARR) supports the arguments made by the Appellant and other intervenors in this case of the need for a clear and consistent test for victims and respondents in Human rights matters, and for a harmonized and coherent national approach for discrimination.

In Peel Law Association  v. Pieters, a racial profiling case involving two Black lawyers and a student, two of whom had dreadlocks, the Court of Appeal reject the requirement of a “causal nexus” or causal link instead holding that:

 [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." 

In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employé de L'Hopital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4 at para. 181, Justice Abella was interpreting section 10 of the Quebec Charter and found only a link was necessary.

We respectfully submit that the requirement of a “causal link” between a challenged discriminatory act or practice and a prohibited ground of discrimination, especially discrimination based on race or ethnicity, effectively constitute the requirement of proving an intent to discriminate and direct discrimination.

The 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).

It is our position that given the fact that discrimination, especially racism and racial profiling is subconscious, sometimes indirect and sometimes systemic,“so far as possible [human rights legislation whose object is to remedy discrimination must] be interpreted in a congruent manner": Ontario (Human Rights Commission) v. Ontario (1994), 19 O.R. (3d) 387 (ON CA)

Thank you. My colleague Aymar Missikala will continue the arguments on behalf of CRARR.

Part of Mr. Missikala's arguments touched on the thin line between the restrictive “causal link” and intent and direct discrimination that effectively creates a double burden of proving the causal nexus first between the “act of exclusion and the prohibited ground,” and then between said act and the damage.

Mr. Missikala also addressed the Court on the compelling goal to create a more perfect harmony between the two dominant legal cultures in Canada in order to provide more effective and equal protection to victims of race and other discrimination, be they in Quebec or in the rest of Canada.

“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 Canadian justice system and beyond,” said CRARR's Executive Director Fo Niemi.

              ********
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 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.

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.

Review of my more important, challenging and interesting cases in 2014

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 December 27, 2014
Updated on December 29, 2014

This is a review of my year of litigation. In 2014 my journey through litigation took my through several practice areas including education law, human rights, police law, criminal law, civil litigation, administrative, constitutional and public law. I won some, I lost some, I resolved some and other cases were litigated on principles so that whether lost or won, the important issue was the principle and standing up for justice.

Constitutional and Public law

I was involved as co-counsel at the Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 242 A.C.W.S. (3d) 772, 27 Imm. L.R. (4th) 216, 376 D.L.R. (4th) 258 affirming McAteer, Topey, Dror-Natan v. Canada (Attorney General)  2013 CarswellOnt 13165, 290 C.R.R. (2d) 332, 20 Imm. L.R. (4th) 121, 117 O.R. (3d) 353, 2013 ONSC 5895, E.M. Morgan J. (Ont. S.C.J.). See also Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 3521 (ON S.C.). Leave to Appeal has been sought at the Supreme Court of Canada. The applicants' position are the Oath to the Queen in the Citizenship Act violates sections 2(a) and (b) Charter of Rights and Freedoms and cannot be saved by section 1. 

Leave to Appeal was granted by the Ontario Court of Appeal in the case of  Taylor-Baptiste v. Ontario Public Service Employees Union, 2014 ONSC 2169 (Div. Ct.) and Taylor-Baptiste v. Ontario Public Service Employees Union et al, 2014 ONSC 5218 (costs). Counsel at the Court of Appeal and Divisional Court are Ranjan Agarwal and Amanda McLaughlin of Bennet Jones. At the Human Rights Tribunal I 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.

Human Rights Law

On October 16, 2014, Mr. Justice Wagner of the Supreme Court of Canada granted the Center for Research-Action on Race Relations 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). This case has interesting parallels to 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. I am co-counsel with a Quebec Lawyer Aymar Missikala. In our written arguments we take the position that: 

18 . Since the Ontario Court of Appeal in Pieters expressly repudiates the unacceptable notion of a "causal nexus" in proving discrimination and profiling, CRARR submits that the Supreme Court has a historic opportunity, with this appeal, to end the more formalistic and restrictive civilist "causal link" test as retained by the Court of Appeal of Quebec that directly reverts to the rejected and rigid intent-based conception of discrimination.

19. The objective is not to set in motion a collision between the Quebec Civil Code and Quebec's civilist tradition with the constantly evolving dimensions of the Canadian Charter of Rights and Freedoms and the common-Iaw tradition on equality in particular, but rather to create a more perfect harmony between the two dominant legal cultures in Canada in order to provide more effective and equal protection to victims of race and other discrimination, be they in Quebec or in the rest of Canada, and be they French-speaking or English-speaking.  

Oral arguments are being heard on January 23, 2015.

Another significant case litigated in 2014 was an employment discrimination case Patterson v. Toronto District School Board. This was an application that alleged discrimination in employment on the basis of age, race, ancestry, colour and association with a person identified by a Code ground. The applicant has also alleged that he experienced reprisal or the threat of reprisal. The case generated several reported decisions including:

• Patterson v. Toronto District School Board, 2014 HRTO 635 (Series of events)
• Patterson v. Toronto District School Board, 2014 CarswellOnt 713 (Recording hearing)
• Patterson v. Toronto District School Board, 2014 CarswellOnt 454, 2014 HRTO 66 (Productions - Disclosure of documents)
• Patterson v. Toronto District School Board, 2014 CarswellOnt 446 (further - disclosure)
• Patterson v. Toronto District School Board, 2014 CarswellOnt 238 (the Request sought statistical data: with respect to the racial makeup of the senior management levels of the respondent Board; the number of Black Principals in the Qualified Applicant Pool and the racial makeup of the “Senior Team”. In addition the applicant seeks particulars of some element of the respondents’ response.)
• Patterson v. Toronto District School Board, 2014 CarswellOnt 83 - (witnesses - will-say)

I have completed hearings on the merits in Lewis v. Toronto Transit Commission. Mr. Lewis, an African-Canadian male, filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment because of race, colour, place of origin and reprisal. The decision is reserved.

Police Law (hybrid Human Rights)

In Afzal v. Regional Municipality of Peel Police Services Board 2014 CarswellOnt 10803, 2014 HRTO 1200, [2014] O.H.R.T.D. No. 1210.  The applicant who was self-represented filed an Application under s. 34 of the Human Rights Code, alleging discrimination with respect to employment because of race, colour, place or origin, ethnic origin. He leter retained counsel to assist him with the process. At that point better pleading were drafted and amendments were opposed by the organizational and personal respondents. The Tribunal Ruled that "[15] Having considered these factors, I grant the applicant’s request to amend the Application but only in part. At the outset, I note that the applicant’s request to amend his Application was made at an early stage of proceedings. Although the respondents have each filed Responses, no hearing has been scheduled and no disclosure has yet been made. This factor would generally weigh in favour of granting the applicant’s amendment request." I was able to provide better pleadings for a police officer who alleged that he has been subjected to discrimination and/or retaliation by Supervisors. See also, Afzal and Peel (Regional Municipality) Police Services Board, Re 2014 CarswellOnt 9011. 

Emms v. Waterloo Police Services Board - Tribunal File: 2013-14928-I - This was an application where a police officer alleged discrimination against her in employment on the basis of sex and disability contrary to sections 5(1), 7(2), 7(3)(a), (b), and 9 of the Human Rights Code. The application also alleged that the employer took retaliatory action against her in contravention of section 8 of the Code.

I also had the opportunity to litigate Clarke, Clarke and McDonald v HMQ (CSCS) - Tribunal File Nos. 2013-15247-I, 2013-15248-I, 2013-15496-I. This was an application alleging racial profiling in the provision of services by the Ontario Provincial Police.

I appeared before the Toronto Police Services Board in two cases: The first involved a recommendation by the Chief of Police to revoke the Special Constable Status of a Toronto Community Housing Corporation Officer. I was successful in having the Board reject the recommendation of the Chief of Police. The second involved representing a probationary constable who the Chief of Police recommended that his appointment be terminated. The Board accepted the recommendation of the Chief of Police.

Criminal Law

I am involved in drugs, guns and gang case "Project Rx". In that case over 70 persons were arrested by police officers in a joint forces operation. It is still in the early stages of its movement through the Courts.

I represented a young person in a reported matter: R. v. C.(K.) 2014 CarswellOnt 11887, 2014 ONCJ 445, [2014] O.J. No. 4183, 115 W.C.B. (2d) 418 this is a case where a Youth Court justice crafted a unique remedy to a case in which a young person plea guilty to robbery. The headnote from westlaw reads: "Accused young person was currently 19 years old and had no criminal record — Accused young person and two males entered washroom at party where some people had gathered, then brandished gun and demanded that everyone turn over their belongings, including watches, purses, and i-Phones — Accused approached complainant, searched his pockets, took his wallet and keys, then shoved and taunted him, and repeatedly punched him in face — Accused young person pleaded guilty plea to armed robbery — Trial judge sentenced accused young person to five months’ probation, then four months open custody, and two months community supervision — Trial judge also ordered ten-year weapons prohibition and made DNA order — Presumption of diminished moral blameworthiness was not rebutted — Although accused did not possess or brandish weapon, he was not only party to its use, he was active participant in robbery — Accused’s actions resulted in physical and psychological harm to victim, and his use of physical violence was gratuitous — Accused had significant and long-standing issues that had been identified, but not addressed — While accused was open to change in his behaviour, any conclusion as to his ability and willingness to pursue his own rehabilitation remained speculative — Accused was at moderate risk of re-offending and was willing to attend counselling — Accused was required to serve probation order first, then appear before court for review at beginning of custodial portion of sentencing — If circumstances were appropriate to do so, period of custody and supervision would be converted to period of six months probation."

Civil Litigation

Bogiatzis v. Davis 2014 CarswellOnt 16643 has been restored to the normal process of litigation. This is a civil proceedings that followed a criminal matter where proceedings were stayed based on the misconduct of an officer R. v. Bogiatzis 2003 CarswellOnt 3272, [2003] O.J. No. 3335, [2003] O.T.C. 785, 108 C.R.R. (2d) 294, 59 W.C.B. (2d) 545. The Westlaw headnote sets out part of the conduct at issue: [Criminal law --- Charter of Rights and Freedoms — Charter remedies — Exclusion of evidence Applicants were charged with membership in criminal organization and multiple conspiracies related to narcotics and weapons following lengthy investigation into their alleged activities as supplier of drugs to well-known motorcycle gang — Intercepted communications were crucial to Crown’s case against each accused — Investigation conducted by wiretap rested on cumulative affidavit of senior police officer — Officer prepared affidavit based on five bankers boxes of documents provided by various investigative police services involved in investigation — Officer returned documents he considered non-relevant, made use of relevant documents for purposes of affidavit, then destroyed documents by shredding them — Officer did not keep list of shredded documents — Authorizations based on affidavit were granted in sequence over 11-month period with last five authorizations relying on first affidavit — Upon commencement of trial in response to application to compel disclosure of bankers boxes, Crown attempted to reassemble documents by copying originals — Application was brought for stay of all charges on basis that officer’s intentional destruction of documents and consequent non-disclosure seriously prejudiced right to make full answer and defence — At hearing on applications officer testified that in first affidavit he knowingly swore to falsehood regarding informant which was repeated by incorporation in each of five subsequent affidavits — Officer further testified to additional falsehoods in particular later affidavits to support interception of communications of accused as he considered them key targets of investigation — Accused took position that officer’s evidence was so misleading that no reliable evidence existed upon which wiretap authorizations could have been granted — All wiretap evidence was ruled inadmissible — Applications for stay dismissed — Despite non-conscriptive nature of evidence seriousness of breach in obtaining evidence was such that admission of evidence would diminish justice — Officer’s misconduct was flagrant in that he generated wiretap evidence to introduce at trial against targeted persons by deceiving judge authorizing wiretap with false and misleading sworn statements in affidavit — Exclusion of evidence was required to protect integrity of wiretap authorization process.]

Education Law

I am representing former Toronto District School Board (TDSB) Director Christopher "Chris" Spence before the University of Toronto Tribunal in respect to plagiarism allegation in respect to his PhD Thesis. Dr. Spence has filed an abuse of process motion that is to be argued on a date and time to be determined by the University of Toronto Tribunal Chaired by lawyer Paul Morrisson. Various preliminary issues are being dealt with: See, University of Toronto and Spence, Re 2014 CarswellOnt 12490.

In April 2014, I successfully resolved a suspension appeal and an all-schools exclusion appeal pursuant to section 265(1)(m) of the Education Act at Dufferin-Peel Catholic District School Board involving allegations of bullying.


In March 2014, I successfully resolved suspension appeal at Halton District School Board involving allegations of bullying and sexual assault.

Commission of Inquiry

In 2014, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry. I am currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

The Commissioners are Sir. Richard L. Cheltenham, K.A., Q.C., Ph.D – Chairman (Barbados); Mrs. Jacqueline Samuels-Brown, Q.C. (Jamaica) and Mr. Seenath Jairam, S.C. (Trinidad). The Commission’s mandate established by its terms of reference are:-
(i) To examine the facts and circumstances immediately prior, at the time of, and subsequent to, the death of Dr. Walter Rodney in order to determine, as far as possible, who or what was responsible for the explosion resulting in the death of Dr. Walter Rodney;
(ii) To inquire into the cause of the explosion in which Dr. Walter Rodney died, whether it was an act of terrorism, and if so, who were the perpetrators;
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death;
(iv) To examine and report on the actions and activities of the State, such as, the Guyana Police Force, the Guyana Defence Force, the Guyana National Service, the Guyana People’s Militia and those who were in command and superintendence of these agencies, to determine whether they were tasked with the surveillance of and the carrying out of actions, and whether they did execute those tasks and carried out those actions against the Political Opposition, for the period 1st January, 1978 to 31st December, 1980;
(v) To examine, review and report on earlier investigations and enquiries done on and into the death of Dr. Walter Rodney.

The hearings have been adjourned sine die. The main witness Donald Rodney has not provided evidence to date. Dr. Roopnarine has not given his oral evidence. Norman McLean has not yet testified. Cecil Skip Roberts have not yet testified. My client Lincoln Lewis has not provided his evidence as yet.

The life of the Commission expires again at the end of January 2015. Parliament in Guyana has been prorogued and the President announced that elections are to be called on a date to be fixed in early 2015. 

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.

********

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.