Prima Facie Case of Discrimination

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

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

As the Tribunal properly recognized, to demonstrate prima facie discrimination, 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.

[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.

Devoe v. Haran, 2012 HRTO 1507 (CanLII)

[30] In order to establish a prima facie case of discrimination, the applicant must prove that (1) she had, or was perceived to have, a disability, (2) she received adverse treatment, and (3) her disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 (CanLII), at para. 36.

[31] With respect to the first part of the test, the applicant proved that she had a disability within the meaning of the Code. She provided medical evidence and oral testimony that showed that she has severe osteoarthritis causing joint pain, degenerative disc disease with sciatica causing marked back and leg pain, and fibromyalgia resulting in generalized muscle pain, and that these medical conditions limit her mobility, including her ability to climb up and down stairs and to clean and maintain her apartment.

[32] With respect to the second part of the test, the applicant proved that she received adverse treatment. She provided oral testimony and documentary evidence that in early to mid-April 2012 the respondent refused her request for a transfer from her second floor apartment to the vacant main floor apartment, and then began showing the vacant apartment to other prospective tenants.

[33] With respect to the third part of the test, the applicant proved that her disability was a factor in the adverse treatment. She provided oral testimony and documentary evidence that showed that the respondent refused her transfer request after she informed him that she had a disability and needed the vacant main floor apartment as an accommodation of her disability-related needs. The respondent’s refusal to accommodate the applicant’s disability-related needs falls within the definition of discrimination that was set out by the Supreme Court of Canada in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), (1989) 1 S.C.R. 143, at pp. 174-75:

"Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society."