Discrimination is often “proven by circumstantial evidence and inference”

Shaw v. Phipps, 2012 ONCA 155, released today, is an important case upholding a determination by the Human Rights Tribunal.  In ruling the Court made useful comments about the proof of discrimination:

34]       As the Adjudicator observed, in any event, proof of Constable Shaw's subjective intention to discriminate is not a necessary component of the test.  There is seldom direct evidence of a subjective intention to discriminate, because "[r]acial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices" and racial discrimination "often operates on an unconscious level". For this reason, discrimination is often "proven by circumstantial evidence and inference" (at paras. 16 and 18).  See also Radek v. Henderson Development (Canada) Ltd. (No. 3), 2005 BCHRT 302, [2005] B.C.H.R.T.D. No. 302, at para. 482