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.

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

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

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

Lawyer & Notary Public (Ontario, Canada)

Attorney-at-Law (Republic of Guyana, Island of Trinidad)

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

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

The Encounter at the Library

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

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

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

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

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

The Hearing at the HRTO

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

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

The Tribunal very early on considered the core functions of the administrator:

[20]           I had before me the PLA “Policies for Library and Lounge Use” passed at the July 5, 2005 Board of Directors’ meeting.  This one page policy states that the lounge is for the use of members in good standing of the Law Society of Upper Canada.  Of note, the Policy also specifically  states that:

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Lawyers’ Lounge within the spirit of the policy.

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Library.[2]

Peel Law Association policy provides that:

LAWYERS: DO NOT BRING CLIENTS OR OTHER MEMBERS OF THE PUBLIC INTO THE LOUNGE, ROBING ROOMS OR LIBRARY

THIS SPACE IS FOR LAWYERS ONLY

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

The Tribunal set the scene:

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

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

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

Findings of Fact and Credibility

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

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

           

Ms. Firth had an opportunity to look at the identification of the other unknown persons in the lounge and chose to focus her attention on the three Black men, Pieters, Noble and Waldron,  precisely because she consciously or unconsciously believe that they were out of place.

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

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

The Tribunal considered the evidence that:

                                                              i.      Ms. Firth’s purpose for leaving the library was to head to the robing room at the behest of Ms. Racz; and

                                                            ii.      that she diverted her attention to myself and my group (at para. 84).

Ms. Firth's aggressive and demanding demeanour

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

                                                          iii.      when Ms. Firth first approached me, she actually interrupted my telephone conversation to demand I identify myself;

                                                          iv.       she did not accept my word that I was a lawyer;

                                                            v.      she then demanded my identification, which I promptly produced; and

                                                          vi.      she attempted to grab my wallet.

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

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

The Evidence of Laurie Reesor – The “Announcement”

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

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

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

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

Findings of Racial Profiling based on reasonable inferences from the evidence

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

[86]           The respondents contended that the personal applicant spoke directly to Mr. Noble and Mr. Waldron and not Mr. Pieters because he was on the telephone and that the personal respondent recognized him from previous visits to the lounge.  The respondents submitted that by seeking to confirm the identity of only two of the three Black men in the lounge, the personal respondent could not have been racially stereotyping or profiling Black men by assuming that Black men present in the lounge were not lawyers.  This argument fails. I find, as noted earlier, that the personal respondent was questioning all three men as to their right to be in the lounge.   That the personal respondent disputed the fact that she challenged all three men as to their right to be in the lounge is a significant issue for me.  It undermines the general credibility of her explanations for why she chose to question the applicants.

The Tribunal also linked the robing room incident with the stop and carding at the door and found that:

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

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

[92]            I have already found that the personal respondent questioned the applicants in an aggressive and challenging manner.   I further note that she interrupted Mr. Pieters while he was on the telephone and, it appears, did not introduce herself to the applicants and Mr. Waldron.  From all the evidence, including the personal respondent’s testimony of how she generally carried out this function, I conclude that the way in which the personal respondent approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and I am prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour.  That said, I accept that the personal respondent’s contention that her regular practice is to ask for identification from individuals even when they are identified by someone else as admissible and so her repeated requests for identification from Mr. Noble and Mr. Waldron does not suggest, in my view, a greater degree of scrutiny.[9]

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

The Award

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

Implications for the Legal Profession and the Law on Discrimination

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

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

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

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

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

Decisions online

Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII)  (Vice Chair B. Eyolfson); Noble v. Peel Law Association, 2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII)  (Vice Chair K. Joaquim); Pieters v. Peel Law Association, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters, 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, (2013), 306 O.A.C. 314, [2013] 116 O.R. (3d) 312 (CanLII) (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204  (Cronk, Juriansz and Pepall JJ.A.)

Press Coverage

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

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

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

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

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[1] Pieters v. Peel Law Assn and Mellissa Firth, 2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O) at para. 4.

[2] Pieters at para. 20.

[3] Pieters at para. 12.

[4] Pieters at para. 62.

[5] Pieters at para. 77.

[6] Pieters at para. 61.

[7] Pieters at para. 79.

[8] Pieters at para. 88.

[9] Pieters at para. 92.

[10] Pieters at para. 102.

[11] Pieters at paras. 100-101.

[12] 5.04 (1) A lawyer has a special responsibility to respect the requirements of human rights  laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the  grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

[13] LSUC Rules of Professional Conduct, Rule 5.04(1).

[14] Canadian Bar Association, Racial Equality in the Canadian Legal Profession, (Ottawa: Canadian Bar Association, 1998); Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability: Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993); R. v. R.D.S. (1997), (1997) 118 C.C.C. (3d) 353.

Sexist stereotypes does not deminish the importance of political expression HRTO Rules

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 February 4, 2013

 

The Reconsideration Decision of the Human Rights Tribunal in 2009-04368-I  Taylor-Baptiste v. Ontario Public Service Employees Union 2013 HRTO 180 was released by Associate Chair David A. Wright on Friday afternoon refusing to reconsider an earlier decision Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393. This case deals with the emerging issue of competing rights being dealt with by the Courts and Tribunal. In this case it involved sexist stereotypes of a female manager by a male union president at the Toronto Don Jail. The Tribunal found that the use of sexist or any other stereotypes does not deminish the importance of political expression.

This decision will be the subject of the great debate. However, much more than that it fundamentally affects the term of engagement for persons who are the subject of negative racist or sexist stereotypes. This decision considerably narrows the scope of rights available to aggrieved parties in the Human Rights Code.

The Applicant and the Ontario Human Rights Commission presented all the arguments that should have persuaded the Tribunal to reconsider, however, it simply determined it will not in the circumstances of this case.

Readers will be advised whether this case will be taken to Divisional Court for Judicial Review.

Amending Pleadings at the Human Rights Tribunal of Ontario: Cadarette v. Peel Regional Police Services Board

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 12, 2012

The December 31, 2012 decision in Cadarette v. Peel Regional Police Services Board, 2012 HRTO 2411 adds significantly to the jurisprudence of amending the pleadings in Human Rights Tribunal applications and highlight the problematic issue of self - represented litigants who are not familiar with the rules on pleadings at the administrative tribunal level.

This was an application by a self-represented police constable alleging discrimination with respect to disability, sex (including sexual harassment), sexual solicitation and reprisal in employment.
The original drafted Application by the self represented litigant was described by the Tribunal described as "vague", "lacking particulars" "disjointed, not in chronological order" and "rambling".
I was retained after a series of Request for Orders were made  by the Respondents to dismiss Cadarette's Application for various reasons. As a result of my work, which involved a diligent review of various documents, other evidence and careful interviewing, a request was made to amend the Application and 71 paragraphs of proposed amended pleadings were made: "The proposed amendments, for the most part, provide particulars about the what, who, when, and where that the Tribunal requires an applicant to provide in response to Question 8 of the Application form and essentially constitute a new application."

The Respondent opposed the amendment of the pleadings and mocked the Applicant's self-represented status:

It is not sufficient, Peel submits, for the applicant to claim that she was a layperson when she filed the Application and is now represented by counsel. She is, Peel submits, is a sophisticated police officer with experience in writing reports, and the letters that she attached to her Application demonstrate her ability to raise her complaints and raise them with senior officials. It “defies reality” for the applicant to claim that she forgot or was unaware of her allegations until she was represented by counsel.

The Tribunal however, reminded the Respondents that:
 

[10] Compared with the Application and the supporting material filed by the applicant, which, as described above, is disjointed, vague, and contains very generalized allegations, the proposed amendments are specific, and set out, for the most part, time frames for the allegations.

The Tribunal then engaged in balancing the rights and interests of Applicant and Respondents:

[11] In my view, there is some unfairness to a respondent when an applicant, after having filed his or her Application and after a Response has been filed, retains counsel and counsel drafts which is essentially a new Application which cures any potential defects in the initial Application. However, in determining requests to amend applications filed under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336 (CanLII), 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 (CanLII), 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563 (CanLII), 2009 HRTO 1563. Further, the Tribunal has held that section 34(1) of the Code only applies to when an applicant may file an Application and not to when he or she can seek to amend an Application. See Grills v. Proctor and Gamble Inc., 2011 HRTO 2009 (CanLII), 2011 HRTO 2009 at para. 25.

Ultimately, in respect to the existence of a poisoned work environment, failure to properly investigate her matter, discrimination based on disability and reprisal actions the Tribunal allowed a significant amount of the pleadings to be amended: "1. The applicant’s request to amend her Application is allowed to include paras. 14, 15, 16, 17, 24, 30, 31, 32, 35, 38, 40, 41-63, 64-66, 67-71 and her requested remedies of the proposed amendments."

This is a complex and has resulted in several interim decisions and case management directions, some of which are reported: 

Cadarette v. Regional Municipality of Peel Regional Police Services Board, 2012 CarswellOnt 6206

Cadarette v. Regional Municipality of Peel Regional Police Services Board, 2011 HRTO 1713 (CanLII) 

Cadarette v. Peel Regional Police Services Board, 2011 CarswellOnt 8981, 2011 HRTO 1660 (CanLII)

Cadarette v. Peel Regional Police Services Board, 2010 CarswellOnt 9355, 2010 HRTO 2399 (CanLII)

In November 2012, the Report of the Ontario Human Rights Review 2012 authored by Andrew Pinto he noted at page 45 that "Out of the 143 merits cases I analyzed, applicants were self-represented in 91 cases or 64% of the time; and respondents were self-represented in 15 cases or 10% of cases, indicating that respondents retained a representative 90% of the time for full hearings."

The take away from this complex litigation is the best couse of action when contemplating human rights litigation is to consult competent counsel from the inception - poorly drafted pleadings can be a recipe for summary hearing, claims that a prima facie case does not exist or claim that the allegations does not related to a Code-related ground.

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in human rights matters involving discrimination and harassment 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.