Systemic Discrimination (Meaning)

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Date Retrieved:	2024-06-18
CLNP Page ID:	2383
Page Categories:	[Human Rights (LTB)], [Human Rights]
Citation:	Systemic Discrimination (Meaning), CLNP 2383, <https://rvt.link/c0>, retrieved on 2024-06-18
Editor:	Sharvey
Last Updated:	2024/06/10

Moore v. British Columbia (Education), 2012 SCC 61 (CanLII), [2012] 3 SCR 360

[59] In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, this Court first identified ‘systemic discrimination’ by name. It defined it as “practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics” (p. 1138). Notably, however, the designation did not change the analysis. The considerations and evidence at play in a group complaint may undoubtedly differ from those in an individual complaint, but the focus is always on whether the complainant has suffered arbitrary adverse effects based on a prohibited ground.

[60] The inquiry is into whether there is discrimination, period. The question in every case is the same: does the practice result in the claimant suffering arbitrary — or unjustified — barriers on the basis of his or her membership in a protected group. Where it does, discrimination will be established.

Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal, 2015 BCSC 534 (CanLII)

[106] Despite these observations, the Tribunal found insufficient evidence to prove a prima facie case of discrimination. In my view, not only did the Tribunal err in setting a standard of proof for prima facie discrimination that was too onerous, it also erred in concluding there was no evidence to meet the third step.

[107] Remembering it is important that “evidentiary requirements … be sensitive to the nature of the evidence likely to be available” (Radek at para. 509), the Tribunal erred in not recognizing that, on the whole of the evidence before it, the “potentiality” to which it refers (in paras. 645 and 660 of its Decision) is the reality that exists. The Tribunal concluded there was no evidence proving that individuals were subjected to adverse treatment because of their race or physical or mental disability. However, that conclusion was drawn without sufficiently taking into account the nature of the adverse treatment and the social environment in which it was taking place. The Program, and thus the adverse treatment, was rooted in two pieces of legislation associated with the street homeless. Applying the correct legal test to the facts leads to the inevitable conclusion that individuals of Aboriginal ancestry and individuals with mental or physical disabilities are differently and disproportionately impacted by the Program.

[108] Whether employing common sense or drawing a reasonable inference, the petitioners have proven the third step in the prima facie test for discrimination. The findings of fact made by the Tribunal about the activities that constituted adverse treatment (for example, waking up individuals sleeping in public parks and next to buildings) combined with the demographics of the street homeless population viewed in the context of the data collected by ambassadors and Dr. Miller’s evidence, does demonstrate that the personal characteristics of Class members was a factor in their suffering adverse treatment. There is no need for “something more”.

Stanley v. Shanti Enterprises Limited o/a Royal Terrace Long Term Care and Retirement Home, 2024 HRTO 558 (CanLII)

[14] To meet the traditional three step test for prima facie discrimination as set out by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, the applicant must show that:

1. The applicant has a protected characteristic under the Code.

2. The applicant suffered disadvantage or an adverse impact; and

3. The protected characteristic was a factor in the disadvantage or adverse impact.

[15] In Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170, at para. 155, the Tribunal further noted:

… If the applicant establishes a prima facie case of discrimination, the respondent must establish, on a balance of probabilities, a statutory defence and/or a credible non-discriminatory explanation for the impugned treatment. If the respondent is able to rebut the applicant’s prima facie case of discrimination, the burden returns to the applicant to establish, on a balance of probabilities, that the respondent’s explanation is erroneous or a pretext for discrimination. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at para. 52. The ultimate issue is whether the applicant has proven, on a balance of probabilities, that a violation of the Code has occurred. Although an evidentiary burden to rebut discrimination may shift to the respondent, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 112 and 119.

[16] As noted in Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”), at paras. 82-84, in a case where there has been a full hearing on the merits, the prima facie analysis is not necessarily required. Pieters at para. 83, stated:

… After a fully contested case, the task of the tribunal is to decide the ultimate issue whether the respondent discriminated against the applicant. After the case is over, whether the applicant has established a prima facie case, an interim question, no longer matters. The question to be decided is whether the applicant has satisfied the legal burden of proof of establishing on a balance of probabilities that the discrimination has occurred.

[17] The prima facie analysis may, however, as further noted in Pieters in para. 84, be useful as an analytic tool to consider whether the applicant has been able to establish discrimination.

[18] As further noted in Pieters at para. 59, it is well established that the protected characteristic does not need to be the only factor in the adverse impact. It is sufficient that the protected characteristic was “a factor” in the adverse treatment. All that is required is that there be a “connection” between the adverse treatment and the ground of discrimination.

Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII)

[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 [page94 ]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.

...

[69] Shaw is an example of such a case. Shaw involved allegations similar to those in this case. In responding to the applicant's evidence, the respondent did not seek to invoke a statutory exception but merely sought to lead evidence to persuade the vice-chair his conduct was not discriminatory. Lang J.A. said, at para. 12, "This means that the onus lies on the complainant to establish discrimination on the balance of probabilities and that, if the complainant does so, the evidentiary burden shifts to the respondent" (emphasis added).

[70] The shifting of the evidential burden, as opposed to the burden of proof, is common in innumerable other legal contexts. For example, in criminal law, which is fastidious in maintaining the legal burden of proof on the Crown, accused confronted with evidence that they are in recent possession of stolen goods face the prospect of an inference of theft unless they explain how they came into possession of the goods. Only the evidential burden has shifted. The accused maintains the unquestioned right to remain silent. However, the accused faces the tactical choice of explaining or risking being found guilty.

[71] Sopinka J. explained the difference between the burden of proof and the evidential burden in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No. 73, a medical malpractice case. Medical malpractice cases are an apt comparison to discrimination cases because as Sopinka J. observed, at p. 322 S.C.R., "The physician is usually in a better position to know the cause of an injury than the patient." At pp. 328-29 S.C.R., he said that in medical malpractice cases because "the facts lie particularly within the knowledge of the defendant . . . very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary". He recognized that "[t]his has been expressed in terms of shifting the burden of proof " and went on to explain why that is not correct. At pp. 329-30 S.C.R., he said:

It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted.

Khan v. Ontario (Attorney General), 2014 HRTO 428 (CanLII)

[8] The Tribunal does not have a general power to decide whether the respondents treated the applicant fairly or appropriately. The Tribunal’s powers relate only to alleged discrimination and violations of the Code and not any other legislation. In other words, while the applicant has clearly stated that he feels mistreated by the respondents, to fall within the Tribunal’s jurisdiction (power to decide), he must also explain how this alleged mistreatment relates to a ground and social area under the Code.