Proving Discrimination

Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 (CanLII)

[481] In making these statements, the Court relied upon a decision of this Tribunal, Kennedy v. British Columbia (Ministry of Energy and Mines), 2000 BCHRT 60, which was also relied upon by the British Columbia Supreme Court in Lee v. British Columbia (Attorney General), 2003 BCSC 1432. Kennedy is one of many decisions in which the difficulties associated with proving allegations of racial discrimination have been remarked upon by this Tribunal: see, for example, Seignoret v. British Columbia Rehabilitation Society, [1999] B.C.H.R.T.D. No. 16 at para. 49, and the cases cited therein.

[482] Taking all these cases into account, I would summarize the applicable principles as follows:

a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;

c) The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;

d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Sinclair v. London (City), 2008 HRTO 48 (CanLII)

[53] It is important not to simply assume that, because Mr. Sinclair was behaving inappropriately, race played no part in the decision to call security. Racial discrimination is often subtle, and can manifest itself through overreaction or a differential response when a racialized person is involved in situations that pose challenges for those in authority. The issue is not whether, in the abstract, Mr. Sinclair's behaviour may have merited a call to security, but rather whether the Commission and complainant have proven that race was a factor in the decision to call security this time. Put differently, if the Commission and complainant have proven on a balance of probabilities that one of the factors in the involvement of security personnel was Mr. Sinclair's race, then there is discrimination and a violation of the Code if the respondent is unable to establish a defence. If this is not proven, there is no violation. It is also important to acknowledge that there will often be no direct evidence that race was part of a decision. The Tribunal must be sensitive to the subtle ways in which race may affect decision making, and attentive to circumstantial evidence that may indicate differential treatment on the basis of race.

[54] I agree with the following summary of the applicable principles set out by the British Columbia Human Rights Tribunal in Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 2005 BCHRT 302 (CanLII), 52 C.H.R.R. D/430 at § 482:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

[55] In this case, the question is whether, on a balance of probabilities, the complainant and Commission have proven that the evidence supports a finding that race was a factor in the involvement of security. I find that this has not been proven. There is no need to resort to shifting evidentiary burdens to decide this issue. On balance, the evidence supports the non-discriminatory explanation that the City has suggested, that the call resulted only from Mr. Sinclair's behaviour.