Burden of proving discrimination rests with claimant

Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, released today, is a careful analysis of the law relating to when discrimination exists under the Human Rights Code. Among other points, the Court is very clear that the burden of proving discrimination always rests with the claimant. The Court writes:

[108]      The third reason why I would not adopt the Divisional Court's test is that, in my opinion, step two of that test reverses the burden of proof by requiring a responding party to effectively disprove discrimination on a balance of probabilities.

[109]      I agree that the responding party in a human rights case has the onus of establishing statutory defences on a balance of probabilities. But I do not agree that a responding party must ever disprove discrimination on a balance of probabilities. Rather, in my opinion, the onus of proving discrimination on a balance of probabilities remains on the claimant throughout. If a claimant proves discrimination on a balance of probabilities and the responding party fails to prove a statutory defence or exemption, then the claimant will have proved a violation of the Code.