Thursday, June 13, 2013

Test for discrimination

Peel Law Association v. Pieters, 2013 ONCA 396 holds:

[53]       The Divisional Court set out the following test for discrimination. The Court said:

In order to prove a prima facie case of discrimination, 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.

[54]       The Court did not indicate from where it derived this test. The term "causal nexus" does not appear in Tranchemontagne, which the Divisional Court cited before setting out this test. The test is not one that human rights tribunals have traditionally applied.

[55]       The traditional definition was applied in Moore, where Abella J. said at para. 33:

As the Tribunal properly recognized, to demonstrate prima faciediscrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

[56]       Lang J.A., in this court's decision in Shaw, at para. 14, said the following three elements were required to establish a prima facie case:

1. That he or she is a member of a group protected by the Code;

2. That he or she was subjected to adverse treatment; and

3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.

[57]       Lang J.A. drew this formulation from the decision of the Divisional Court majority in Shaw, which was cited by the Divisional Court in this case.

[58]       Neither the Moore nor Shaw statements of the test use the word "nexus". In fact, Abella J. does not use the word "nexus" at all in her reasons in Moore. InShaw, in discussing her articulation of the test, Lang J.A. uses the terms "nexus", "connection" and "factor" interchangeably.

[59]       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.

[60]       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.

[61]       I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case. This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination.

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