Evidence of racial discrimination can be hard to come by.  In Ontario, it is settled law that discrimination will more often be proven by circumstantial evidence and inference; the law has also accepted the principle that racial stereotyping will usually be the result of subtle unconscious beliefs, biases, and prejudices. ¹

A recent decision from the Human Rights Tribunal of Ontario shows how an external review body may make such an inference based on flaws in an organization’s investigation.

THE CASE

The Incident and the Town’s Response

CM v. Bradford West Gwillimbury (Town)² is a case about how the Town of Bradford West Gwillimbury (“Town”) investigated a fight that happened at its municipal leisure centre.

C.M. was a 14-year-old boy.  He often played basketball at the leisure centre.  One day, he got into a fight with four other racialized youths.  The fight lasted just over a minute and resulted in no injuries or need for medical intervention.

The Town investigated the fight by interviewing C.M. and the four other minors in the presence of their parents. One of the youths took a video of the fight with his phone, which the Town reviewed.  Following its investigation, and as a consequence for his actions, the Town decided to ban C.M. from the leisure centre for 15 months.  Upon consulting with the local police service, the Town decided to include another municipal building, the library, in the ban.

C.M. did not dispute his involvement in the fight.  He and his mother agreed that he should face disciplinary consequences for his actions. They raised concerns, however, that racial discrimination may have played a part in the Town’s investigation and its decision to impose a rather long ban.  In response, the Town directed its Director of Human Resources to review the matter and to determine if the original investigation or its findings and consequences were in any way racially motivated.  The Director reviewed the incident reports and spoke with the three Town staff who had investigated the fight.  The Director did not review the cell phone video or speak with the youths.  The Director subsequently concluded that there was no evidence of racial motivation in the Town’s handling of the matter.

C.M. subsequently made an application to the Human Rights Tribunal via his litigation guardian. He alleged that the Town’s investigative process and disciplinary decision were discriminatory and the result of racial discrimination.

The Decision of the Human Rights Tribunal of Ontario

The Tribunal agreed with C.M.’s position and found that the Town’s actions were discriminatory on the grounds of race and colour.  Among the issues it noted were the following concerns with the Town’s investigative and decision-making processes:

• Did not pursue other potential sources of evidence: The Town only interviewed the five, racialized youth who were mainly involved in the fight. According to the video clip taken by one of the youths, additional people peripherally participated in the fight and the incident was witnessed by other leisure centre users. Furthermore, additional video footage was available via the leisure centre’s security cameras.

• Suboptimal documentation of the investigation: Town staff took brief notes of their interview with C.M. The lack of detailed notes made it difficult for the Town to explain how C.M.’s alleged behaviour at the interview supported its decision to impose a 15-month ban.

• Possible impact of police involvement in the investigation: An officer from the local police service sat in on the Town’s investigative interview with C.M. The officer did not attend the interviews of the other youths.  The Town acknowledged that police are very rarely asked to attend interviews in investigations relating to such conduct.  The Town also notified the local police service after it had decided to ban C.M. from the leisure centre, and provided uncontradicted evidence that the police recommended that the ban be extended to include the municipal library even though it is a different facility from where the fight had occurred.

• Disciplinary decision deviates from applicable policy: According to the Town’s investigative findings and the Leisure Centre Code of Behaviour that was in effect at the time of investigation, C.M. should have received a one to three-month ban. The Tribunal found that the Town did not have a rational and credible explanation for why it imposed a much longer ban.

• Subsequent review repeated some of the weaknesses of the original investigation: When the Town’s Director of Human Resources did her review, she limited her information-gathering to interviewing the three Town employees who had conducted the original investigation She also did not consider the Leisure Centre Code of Behaviour to assess the appropriateness of the disciplinary decision.  In finding that the reviewer’s report was “one of the strongest arguments for my finding that the actions of the [Town] were based, at least in part, in racial discrimination,” the Tribunal noted,

It is not a realistic expectation that the three people who carried out the investigation and determined the consequences for the racialized youth involved would explicitly state that their actions were discriminatory and based in racism.

KEY TAKEAWAYS

Incomplete information-gathering and a lack of credible rationales can support the inference that racial stereotyping and subtle unconscious biases were a factor in a party’s investigative and disciplinary processes.  Here are some points to keep in mind to ensure that racial bias does not influence an investigator’s decision-making.

• Make reasonable attempts to pursue all available sources of relevant evidence. If the investigator decides not to speak with certain witnesses, they should be prepared to explain why.  In CM, the Tribunal found that Town’s failure to conduct a more comprehensive set of interviews indicated an “attitude…that there was no need to look further, when the five racialized youth had been found to be guilty of engaging in a violent fight.”

• Aim to have a similar procedure and set of roles for all party interviews. This goes to fairness and consistency. Give the same introduction at interviews.  Offer all parties the opportunity to bring a support person and/or representative.  If there are to be additional or different roles at an interview, consider how this remains fair and be prepared to explain why.  It might also be useful to obtain the interviewee’s verbal or written consent for having the additional attendee.  In CM, the Tribunal noted that a police officer was present at C.M.’s interview, but not for the other youths’.

• Be able to explain the rationale behind a disciplinary decision, especially if there is a gap between the investigative findings and what the applicable policy recommends for those findings. It may also be helpful to document external, non-privileged sources of advice for an investigative step or a disciplinary decision, particularly if the investigator/organization decides to follow that advice.
• Subsequent reviews of an investigation are an opportunity to take a deep dive into organizational processes and assess potential weaknesses in those processes. A review that focuses on and takes at face value what the investigators did may be found to be too narrow.

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¹ Radek v Henderson Development (Canada) Ltd (No.3), 2005 BCHRT 302; Peel Law Association v. Pieters, 2013 ONCA 396

² 2019 HRTO 1501 [CM].