Tuesday, February 21, 2012

Lawyers Failed to Establish Prima Facie Case of Discrimination

In December 2010, the HRTO released its decision in Pieters v. Peel Law Association, finding that the Association's administrator/librarian, Melissa Firth, discriminated against two racialized lawyers, Pieters and Noble, because of their race.

Essentially, there was a heated argument in May 2008 which followed from Firth asking Pieters and Noble for identification in the lawyer's lounge.  She explained that she frequently questions people that she doesn't recognize.  The Tribunal noted that there were several people in the lounge at the time that she wouldn't have known, and inferred from this that the decision to stop Pieters and Noble was based on their race.  The Tribunal felt that Firth's non-discriminatory explanations did not overcome this inference, and that it was likely that the decision to question them was at least partly based on race.

"Racial profiling" is a very difficult issue in human rights, involving legitimate and legal scrutiny applied in unfair measure to one group.  When a police officer questions one individual but not another, detains one individual but not another, tickets one individual but not another, these are all ostensibly permissible exercises of police discretion...yet if the discretion is used in whole or in part because of race, it will violate the Human Rights Code.

This case is in some ways similar, though the Divisional Court downplayed the similarities when it recently allowed an Application for judicial review, on the basis that the Tribunal erred in its assessment of whether or not there was a prima facie case.  Where a distinction has been made, it falls to the person asserting discrimination to establish the link between the treatment and a prohibited ground of discrimination.  The Divisional Court felt that the Tribunal reversed this burden of proof by inferring the link from the absence of non-discriminatory explanation.

In any event, the Divisional Court found, there were findings of fact that were inconsistent with the findings that Firth lacked a credible non-discriminatory explanation.

I think the nuances are close here, but the lesson is clear:  A member of a protected group who receives unfavourable treatment cannot expect the Tribunal to presume that the treatment was a result of membership in the group.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.


  1. There was another Arbitrator decided case went to HRTO and HRTO seems very tough based on Figliola. And HRTO decided that whatever arbitrator decided, tribunal will not hear and will dismiss it. Do you think this is legimately correct? It seems like HRTO even does not have any discretion not to dismiss for the part decided?

    The case: Paterno v. The Salvation Army et al, 2011 HRTO 2298 (http://canlii.ca/t/fpfv5)

    Another law blog discussed a lot about this case:

    Seems to me the substance of Paterno's human rights complaints were never heard by the Arbitrator or the HRTO and HRTO simply dismissed the case where arbitrator decided (but not heard) And one of Mr. Paterno's scenario in his application is quite similar to Pieter's case here.

  2. It isn't surprising. Cathy Pike's submissions in particular reflect a very realistic assessment of Figliola, being summed up thusly by the Tribunal:

    "...although there are arguments that the Ontario Code might be interpreted differently from the British Columbia legislation at issue in Figliola, the Supreme Court would likely have decided the case the same way if it came from Ontario."

    The Tribunal applied Figliola on that basis, limiting its own discretion severely. One might argue that Figliola should not have been so readily applied without further analysis, but you can't be surprised that an administrative Tribunal would avoid that kind of nuanced approach to statutory interpretation, particularly with one side being self-represented and the Commission only making written submissions. If they were right to apply Figliola, however, it looks like they did so correctly.

    I also have concerns about the adjudicator's commentary on the nature of the applicant's "choice" at paragraph 33 - I think the approach is a little unrealistic and simplistic. But that particular commentary is more about finding a morally palatable explanation for the reasons of what is otherwise plausibly-sound legal reasoning.

  3. From Paterno

    When the Union lawyer presented my case before the arbitrator it was the accepted practice, supported by case law, to choose to allow HRTO cases to remain in the HRTO jurisdiction.

    If it is argued Figliola changed that choice then it was totally unjust to apply it to my case since the Union lawyer presented his arguments according to accepted practice at the time.

    My case was not heard by the arbitrator or the HRTO. This was a totally unjust decision.

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  5. Update: The Ontario Court of Appeal overturned the Divisional Court's decision. http://lawyerbuchanan.blogspot.ca/2013/06/court-of-appeal-reverses-pieters.html