Systemic Discrimination (Meaning)

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Date Retrieved:	2024-06-26
CLNP Page ID:	2383
Page Categories:	[Human Rights (LTB)]
Citation:	Systemic Discrimination (Meaning), CLNP 2383, <https://rvt.link/c0>, retrieved on 2024-06-26
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.