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.