Peel Law Association et al. v. Pieters et al.,

• Jurisdiction: Ontario
• Judge: Cronk, Juriansz and Pepall, JJ.A.
• Neutral Citation: 2013 ONCA 396
• Citation: (2013), 306 O.A.C. 314 (CA),2013 ONCA 396,116 OR (3d) 80,[2013] CarswellOnt 7881,[2013] OJ No 2695 (QL),[2013] O.J. No 2695 (QL),(2013), 306 OAC 314 (CA),306 O.A.C. 314,306 OAC 314,116 O.R. (3d) 80
• Date: 13 June 2013
• Court: Court of Appeal (Ontario)

Peel Law Assoc. v. Pieters (2013), 306 O.A.C. 314 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.010

Peel Law Association and Melissa Firth (applicants/respondents) v. Selwyn Pieters and Brian Noble (respondents/appellants)

(C55734; 2013 ONCA 396)

Indexed As: Peel Law Association et al. v. Pieters et al.

Ontario Court of Appeal

Cronk, Juriansz and Pepall, JJ.A.

June 13, 2013.

Summary:

The complainants brought a discrimination complaint against the Peel Law Association and Firth (the respondents). The Vice-Chair of the Human Rights Tribunal of Ontario (HRTO) allowed the complaint, holding that the respondents had discriminated against the complainants in the provision of services, goods and facilities on the basis of race and colour, contrary to s. 1 of the Human Rights Code (Ont.). The HRTO ordered the respondents to pay a compensatory award of $2,000 to each of the complainants for violation of their inherent right to be free from discrimination and for injury to their dignity, feelings and self-respect. The respondents requested an order quashing the HRTO's decision and an order substituting a decision dismissing the complainants' applications before the HRTO.

The Ontario Divisional Court, in a decision reported at 288 O.A.C. 185, allowed the respondents' application and awarded them partial indemnity costs of $20,000 against the complainants. The complainants appealed.

The Ontario Court of Appeal allowed the complainants' appeal, set aside the Divisional Court's decision and reinstated the decision of the Vice-Chair. The court fixed the complainants' costs of the judicial review application in the Divisional Court, and of the leave application and appeal in the Court of Appeal in the amount of $30,000, inclusive of disbursements and HST.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - The Divisional Court held that "In order to prove a prima facie case of discrimination [under the Human Rights Code (Ont.)], there must be evidence to support the following findings: a. a distinction or differential treatment; b. arbitrariness based on a prohibited ground; c. a disadvantage; and d. a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered." - On appeal, the Ontario Court of Appeal held that "While the word 'nexus' is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a 'connection' between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a 'factor' in the adverse treatment. 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." - See paragraphs 59 and 60.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - Firth, the librarian of a courthouse library operated by the Peel Law Association (PLA), asked the complainants, who self-identified as black, for identification to confirm that they were either lawyers or law students (the only categories of persons allowed to use the library) - The Vice-Chair of the Human Rights Tribunal of Ontario, found that Firth and the PLA (the respondents) had discriminated against the complainants on the basis of race or colour contrary to s. 1 of the Human Rights Code (Ont.) - The respondents sought judicial review - The Divisional Court held that the Tribunal erred by unreasonably determining that a prima facie case of discrimination had been established - By failing to require the complainants to satisfy the nexus requirement, the Tribunal improperly reversed the burden of proof, placing an impossible onus on the respondents to disprove discrimination - On appeal, the Ontario Court of Appeal held that the Divisional Court erred in law in finding that the Vice-Chair reversed the burden of proof - "First, the Divisional Court lost sight of the distinction between the burden of proof and the evidential burden. The Vice-Chair having found a prima facie case existed properly looked to the respondent to provide an explanation. Second, the Divisional Court went on to state that 'by improperly reversing the burden of proof, the Tribunal placed [the librarian] in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race or colour.' The shifting of the evidential burden does not put the respondents in the position of having to prove a negative. Rather, it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else - namely, why they made a particular decision or took a particular action." - See paragraphs 76 and 77.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - The complainants brought a discrimination complaint against the respondents - The Vice-Chair of the Human Rights Tribunal of Ontario (HRTO) allowed the complaint, holding that the respondents had discriminated against the complainants in the provision of services, goods and facilities on the basis of race and colour, contrary to s. 1 of the Human Rights Code (Ont.) - The Divisional Court overturned the decision on appeal - The complainants appealed - The Ontario Court of Appeal rejected the respondents' submission that the Vice-Chair erred by analyzing the evidence in a compartmentalized fashion - The court stated that it "... would leave to tribunals how they structure their analysis of the evidence. No matter how a particular tribunal conducts its analysis, at the end of the day, the tribunal must consider all the evidence that both supports and undermines the application in determining whether discrimination has occurred." - See paragraphs 80 to 90.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - Firth, the librarian of a courthouse library operated by the Peel Law Association (PLA), asked the complainants, who self-identified as black, for identification to confirm that they were either lawyers or law students (the only categories of persons allowed to use the library) - The Vice-Chair of the Human Rights Tribunal of Ontario, found that Firth and the PLA (the respondents) had discriminated against the complainants on the basis of race or colour contrary to s. 1 of the Human Rights Code (Ont.) - The respondents sought judicial review - The Divisional Court allowed the application - The complainants appealed - The Ontario Court of Appeal allowed the appeal - The court held, inter alia, that: the Divisional Court erred in holding that the Vice-Chair disregarded evidence; and the Vice-Chair did not err by referring to social science not in evidence before him (while a tribunal had to exercise care and caution in taking judicial notice of social science evidence introduced in another case, there was no unfairness done in this case) - The Vice-Chair's decision fell well within the range of reasonable outcomes - The Divisional Court erred in concluding that it did not - See paragraphs 91 to 135.

Civil Rights - Topic 910

Discrimination - General principles - Adverse effect, indirect or constructive discrimination - [See first Civil Rights - Topic 907 ].

Civil Rights - Topic 911

Discrimination - General principles - Causation - [See first Civil Rights - Topic 907 ].

Civil Rights - Topic 973

Discrimination - Facilities and services customarily available to public - Discrimination on the basis of race - [See fourth Civil Rights - Topic 907 ].

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs (incl. on appeal) - Firth, the librarian of a courthouse library operated by the Peel Law Association (PLA), asked the complainants, who self-identified as black, for identification to confirm that they were either lawyers or law students (the only categories of persons allowed to use the library) - The Vice-Chair of the Human Rights Tribunal of Ontario, found that Firth and the PLA (the respondents) had discriminated against the complainants on the basis of race or colour contrary to s. 1 of the Human Rights Code (Ont.) - The respondents sought judicial review - The Divisional Court allowed the application - The complainants appealed - The Ontario Court of Appeal allowed the appeal, set aside the Divisional Court's decision and reinstated the Vice-Chair's decision - The court fixed the complainants' costs of the judicial review application in the Divisional Court, and of the leave application and appeal in the Court of Appeal in the amount of $30,000, inclusive of disbursements and HST.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See fourth Civil Rights - Topic 907 ].

Evidence - Topic 2245

Special modes of proof - Judicial notice - Particular matters - Judicial proceedings (incl. fact findings in) - [See fourth Civil Rights - Topic 907 ].

Evidence - Topic 2260

Special modes of proof - Judicial notice - Particular matters - Social conditions (incl. social facts) - [See fourth Civil Rights - Topic 907 ].

Cases Noticed:

Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 102 O.R.(3d) 97; 2010 ONCA 593, refd to. [para. 21].

Shaw et al. v. Phipps et al. (2012), 289 O.A.C. 163; 2012 ONCA 155, consd. [para. 33].

Moore v. British Columbia (Education) - see British Columbia (Minister of Education) v. Moore et al.

British Columbia (Minister of Education) v. Moore et al. (2012), 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 351 D.L.R.(4th) 451; 2012 SCC 61, refd to. [para. 45].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 64].

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159; 132 D.L.R.(3d) 14, refd to. [para. 67].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 71].

Radek v. Henderson Development (Canada) Ltd. (No.3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 (CanLII), refd to. [para. 111].

Phipps v. Toronto Police Services Board, 2009 HRTO 877 (CanLII), refd to. [para. 111].

R. v. Parks (C.) (1993), 65 O.A.C. 122; 15 O.R.(3d) 324; 84 C.C.C.(3d) 353 (C.A.), refd to. [para. 113].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 114].

Nassiah v. Peel Regional Police Services Board, 2007 HRTO 14 (CanLII), refd to. [para. 116].

Counsel:

Mark J. Freiman and Lucas E. Lung, for the respondents;

Geri Sanson, for the appellants;

Joseph Osuji, for the intervener, Just Society Group;

Ranjan K. Agarwal, Christiaan A. Jordaan, and Jessica E.R. Weiss, for the intervener, South Asian Legal Clinic of Ontario;

Anthony Griffin and Sunil Gurmukh, for the intervener, Ontario Human Rights Commission;

Anita Bromberg and Marvin Kurz, for the intervener, League of Human Rights for B'nai Brith Canada;

Margaret Leighton and Andrea A. Cole, for the intervener, Human Rights Tribunal of Ontario.

This appeal was heard on December 18 and 19, 2012, by Cronk, Juriansz and Pepall, JJ.A., of the Ontario Court of Appeal. Juriansz, J.A., delivered the following decision for the court on June 13, 2013.