The Court of Appeal's decision is fairly lengthy and detailed, but I just want to touch on a couple of points:
Firstly, the Court of Appeal considers the Divisional Court to have misstated the test for a prima facie case of discrimination by requiring a "causal nexus" between the prohibited ground and disadvantage suffered, versus a "connection" to the prohibited ground, as the test is usually stated in the established jurisprudence. Requiring the nexus to be "causal" is what the Court of Appeal really considered to be a problem, because the established jurisprudence focuses on "the discriminatory effects of conduct, rather than on intention and direct cause".
Respectfully, I think the Court of Appeal is way off on this one. There are multiple differences between the test the Divisional Court applied and the traditional test, but they get to the same place:
The Divisional Court looked for four factors:
- A distinction or differential treatment;
- Arbitrariness based on a prohibited ground;
- A disadvantage; and
- A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.
The usual test is this:
- That he or she is identified by a prohibited ground of discrimination;
- That he or she was subject to adverse treatment; and
- That the prohibited ground was a factor in the alleged adverse treatment.
"Factor" could be used interchangeably with language such as 'connection' or 'nexus', but the Court of Appeal thinks that a 'causal nexus' is different.
And they may be right about that, on a close reading: A causal nexus suggests that you have to find that you were treated in a certain way because of the prohibited ground, whereas simply requiring a nexus is a lower standard, requiring some connection that need not be directly causal. So the example would be Meiorin, where a female firefighter wasn't treated any differently for being a woman, but the standards set had the effect of discriminating against women.
However, on the overall framing by the Divisional Court, that concern doesn't exist, because the Divisional Court isn't looking for the cause of 'adverse treatment' but rather 'disadvantage'. Intent doesn't play into that.
Perhaps more importantly, while I'm not exactly a fan of the Divisional Court's test, I don't see the question of 'causal nexus' as being important on the facts of this case. Indeed, to be able to say that he was discriminated against based on race, even though there was no causal nexus between his race and the way he was treated...would be frankly absurd.
I'm not sure that's a critical element of the decision, either way, however. The decision largely turns on deference, a finding that there was reason to think that the law librarian acted as she did because of race - the reasons turning largely on other credibility issues, the fact that she lied at the time about why she picked them out, among other things...none of which specifically suggest that race was the reason, but might reasonably be interpreted as suggesting that she had a specific reason for picking them out which she didn't want to disclose.
I'm not entirely comfortable jumping from "she picked on them and doesn't want to tell us why" to "it must have been racism"...but in the reality of human rights, it would often be an insurmountable burden to require more than that, because we can't get at what's in the heads of others.
As I said before, it's a close case.
Recording of Proceedings
However, there's a bit of obiter at the end which I find quite remarkable:
Finally, I will comment about respondents’ counsel’s complaint that there was no record of the proceedings before the Vice-Chair. We were advised that the HRTO does not normally record or transcribe its proceedings. This is difficult to understand given the availability of modern and simple to operate digital recording equipment. It seems to me that the advantages of recording the proceedings to the parties, the reviewing courts and to the tribunal itself outweigh any perceived difficulties. Certainly equipment problems can arise, but the impossibility of guaranteeing a reliable, quality recording is hardly a good reason for not recording at all.
This is huge. At this point, very few proceedings other than Courts maintain records of proceedings. This is not an infrequent gripe that lawyers have towards administrative tribunals, and not surprising that the Peel Law Association would raise the concern. Labour Arbitrators, the HRTO, the OLRB...none of them record proceedings. The LTB sometimes records hearings. The Social Benefits Tribunal...well, I appeared before them quite a few times several years ago, and one of the adjudicators recorded proceedings...I am not entirely sure whether that was a pilot project, or if perhaps it was for the purpose of oversight over that particular adjudicator, because she had a bit of a reputation for always leaning one way...
The point, however, is that a lecture from the Court of Appeal for not having recorded proceedings is something that admin tribunals can't ignore.
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