|Selwyn Pieters says the decision won’t change how he or his colleagues feel.|
The law association originally sought judicial review of the tribunal’s ruling in January 2011 after vice chairman of the tribunal, Eric Whist, found race was a factor in Firth’s questioning of Pieters and his colleagues, adding while the association’s argument that it regularly checks the identities of people in the lounge was credible, Firth’s account of the incident was not.
But a three-judge panel led by Justice Sandra Chapnik overturned the tribunal’s ruling Feb. 13, saying she agreed with the association that the tribunal erred in “unreasonably determining” that a case of prima facie discrimination had been established and unfairly placed the onus on Firth to refute the discrimination.
“The undisputed evidence was that Ms. Firth’s duties included asking for identification to confirm the admissibility of persons in the lounge and library. Her position at the hearing was that she acted on this occasion in the context of those duties,” wrote Chapnik in Peel Law Association v. Pieters.
“By improperly reversing the burden of proof, the Tribunal placed her in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race and colour. With respect, the Tribunal erred in doing so.”
Firth originally approached the group in May 2008 at the Brampton courthouse where the association operates a lounge and library that is open to lawyers but not paralegals or members of the public. Pieters, Noble, and Waldron were not robed at the time but were each wearing business suits, according to the decision.
When Firth approached the group asking for identification, Pieters and Firth ultimately reached an agreement to exchange business cards to establish their identities. Pieters followed Firth while she retrieved her business card and Firth followed Pieters while he retrieved his.
During the interaction, Pieters told Firth that asking the group for identification was akin to racial discrimination, and by following him while he retrieved his business card, Firth was treating him “as a suspect and subjected him to further humiliation,” according to the decision.
Firth later discussed the encounter with her supervisors who approved the posting of signs in the lounge informing its users’ identification would be requested unless they were robed. Pieters found this to be particularly discriminatory as well, according to the decision.
He also claimed that by allegedly singling out the group rather than two other white patrons who were not lawyers and a person who identified as non-white who were in the lounge during the incident, Firth’s actions were allegedly discriminatory.
But Mark Freiman, who represented the association and Firth in the case, says the court’s decision shows that a nexus between Firth asking the group for identification and racial discrimination occurring can’t simply be assumed.
“The decision reminds us that there are two parties in human rights complaints and that we can’t simply assume there is a nexus,” says Freiman. “There is a real stigma attached to people who are accused of racial discrimination and this decision ensures people who have a defence are able to use it.”
In the decision, Chapnik noted that Firth, over the course of her duties in the lounge, had asked many people, who were also white, for identification, noting the tribunal ignored evidence that showed Firth had asked the trio for ID because they were closest to the library door she exited from.
Freiman added that while discrimination cases of this nature aren’t often quashed, he is “heartened” by the decision and its ability to strike an “important balance” between protecting the rights of the accused and those who may be discriminated against.
“I think the decision speaks well to maintaining the integrity of human rights and shows the courts have a justifiable interest in making sure both parties’ interests are protected,” says Freiman. “That’s why this decision is so important, it makes sure there is that balance.”
But Pieters says Chapnik’s interpretation of where the threshold burden lies disrupts that balance.
“I do not agree with the judge that the onus was reversed,” says Pieters. “We had first established we were discriminated against and under law the respondents were called to respond.”
Chapnik, on the other hand, found “a complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction” to establish a prima facie case of discrimination.
“It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group,” Chapnik quoted Justice Rosalie Abella as saying.
“Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.”
But, despite that interpretation of the burden, Pieters says it won’t change how he or his colleagues feel.
“The judge had a different interpretation of the onus test,” says Pieters. “But it doesn’t change how we felt on that day when we heard the tribunal’s decision.”
Chapnik awarded $20,177.59 for fees, disbursements, and HST on a partial indemnity basis, with Pieters and Noble paying $20,000 in costs to the Peel Law Association and Firth.
The decision also means any applications before the tribunal on behalf of the group will be dismissed.
Vilko Zbogar, who represented Pieters and Noble in the case, says while he is disappointed in the court’s finding, there may be the potential for appeal in the future.
“The court seems to say librarians can’t racially profile individuals in the course of their duties, and, in my humble opinion, I don’t believe that to be the case,” says Zbogar.
“The legislature created a body with extensive expertise in human rights matters, and in my respectful opinion, it may not be entirely clear where the court gave proper deference to that tribunal. So, there are things in here which may be appealable, but that will be up to Selwyn and Brian to decide.”