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The nature of discrimination is such that it is often based on an individual’s “gut feeling” about an experience or interaction, rather than anything that is overtly said or done. The courts have recognized time and again that discrimination is often subtle and not overt. It is for this reason that the law accepts circumstantial evidence to establish discrimination, because there is a common understanding that in most cases, direct evidence does not exist. The question is, how does the law view an individual’s gut feeling about discrimination?
One of the things that has been recognized is that those who are discriminated against know when they are being discriminated against because they face it as part of their daily lives. On the other hand, those privileged enough to not have discrimination as part of their reality may struggle to recognize discrimination where it exists. This brings us back to the question of the “gut feeling” and how it may be viewed from a legal standpoint.
In a recent, very brief, decision of the Ontario Human Rights Tribunal, Lovrecich v. Shoppers Drug Mart, 2021 HRTO 848 (CanLII), delivered on September 24, 2021, the Tribunal noted that,
To fall within the Tribunal’s jurisdiction, an Application must provide some factual basis beyond a bald assertion which links their ground(s) to the respondents’ actions and explains why they think that these actions are discriminatory in nature.
The application in this case pertained to an allegation of discrimination in services on the basis of age, colour, ethnic origin, and race. Specifically, the applicant alleged that she was discriminated against in the way she was treated by the respondent while she was shopping in the store. Essentially, the Tribunal said that what was missing from the applicant’s application was an explanation as to why the respondent’s actions or alleged failures to act were based on discriminatory factors, “other than providing merely bald assertions of adverse treatment and her disagreement with the customer service.” In essence, the Tribunal said that it is not enough for one to say that they are discriminated against; they must be able to point to some evidence, beyond their assumptions or beliefs, that could prove that what they have experienced is based on a discriminatory factor. Absent this explanation, the Tribunal was left with no choice but to dismiss the application. This is because the onus rests on the person who makes the allegation. As part of its analysis, the Tribunal commented that, as human beings, everyone identifies with at least one of the grounds in the Human Rights Code and during their lifetime, almost everyone experiences some form of adverse treatment that may or may not be connected to a Code ground. For that reason, the Tribunal said, “the Code does not assume that all adverse treatment is discriminatory.”
So, again, what value can or should be placed on what an individual believes has happened to them? The question of impressions and feelings was considered some years ago by the Canadian Human Rights Tribunal (CHRT) in Brooks v. Department of Fisheries and Oceans, 2004 CHRT 36 (CanLII). There, the CHRT discussed the challenges with discrimination cases but noted, interestingly, that “impressions, even mere impressions, may have some probative value.” In that case, the CHRT determined that the beliefs of a witness in the case, whom the CHRT found to be credible and convincing, was entitled to some weight. That case pertained to, among other things, an allegation of discrimination based on race in the context of an employment competition. The witness, who identified as Black, had also participated in the competition and was unsuccessful. She felt that she should have ranked first in the competition and believed that racism was the reason she did not rank as she anticipated. When examined closely, the witness’ evidence was not merely a bald assertion of a belief; rather her belief was based on facts linking her experience to her race. For example, the witness was able to point to the fact that the individuals who ranked first and second in the competition submitted their applications after the deadline, and they did not have the relevant experience, which was a requirement listed in the Statement of Qualifications.
The seminal point, therefore, is this – bald assertions about gut feelings or impressions will carry no weight to establish discrimination unless there is some evidence, even circumstantial, that can link that belief to a discriminatory factor. Bald assertions are simply not sufficient to establish discrimination.
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