We often hear from clients and participants in our training courses that they have difficulty determining whether discrimination has occurred at the conclusion of their investigations. A recent decision of the Human Rights Tribunal of Ontario succinctly articulates the test for discrimination and demonstrates its application.  In Pieters v. Toronto Police Services Board (2014 HRTO 1729), the Tribunal considered allegations of discrimination in services because of race, colour, ancestry, ethnic origin and association made by an African Canadian man in relation to interactions with several police officers in the Entertainment District around the time of the G-20 Summit.

The applicant, Mr. Pieters, alleged two incidents of racial profiling and discrimination. The first incident alleged by Mr. Pieters was that a police officer hit him while they walked on a crowded sidewalk and when he told her, she commented that he was in her way. The second incident related to alleged treatment by several officers after Mr. Pieters yelled at police officers who he believed to be assaulting two Black men during an arrest (in which Mr. Pieters was uninvolved).

After reviewing the evidence of Mr. Pieters and several officers, Vice-Chair Bhattacharjee stated that the applicant, Mr. Pieters, had the onus of proving on a balance of probabilities that a violation of the Code had occurred, noting that clear, convincing and cogent evidence was required.

Vice-Chair Bhattacharjee outlined the test for discrimination as follows:

In order to establish a case of discrimination, the applicant must prove that (1) he is, or was perceived to be, a member of a group protected by the Code; (2) he was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment.

Before applying the test, Vice-Chair Bhattacharjee noted several principles applicable to an analysis of racial discrimination, summarized as follows:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct;

(b) There is no need to establish an intention or motivation to discriminate;

(c) The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct;

(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.

Based on his assessment of the evidence of the parties and their relative credibility, Vice-Chair Bhattacharjee concluded that in both encounters with police officers, Mr. Pieters was treated adversely.

Considering the first allegation, Vice-Chair Bhattacharjee found that:

• Pieters was walking on the sidewalk with a barricade to his left blocking access to the street and a line of police officers pushing their bicycles came along his right hand side.
• DC Garrison made contact with Mr. Pieters, most likely with her handlebars, when she was passing him on the sidewalk.
• Pieters turned around, and said, “Excuse me, why would you hit me?” and DC Garrison responded, “Well, you are in my way,” and kept on walking.

Despite finding that this was adverse treatment, Vice-Chair Bhattacharjee was unwilling to draw an inference that Mr. Pieters’s race, colour, ancestry, and ethnic origin were factors in the adverse treatment he experienced. He noted that DC Garrison’s rudeness, lack of apology, and failure to document the encounter did not support such an inference, writing, “Human rights jurisprudence recognizes that rude behaviour and deviation from normal practices can be indicators of racial profiling and discrimination, but in cases where racial profiling and discrimination have been inferred, the rude behaviour and deviation from normal practices have tended to be more serious than in the case at hand, and/or there have been additional indicators of racial profiling and discrimination.” Mr. Pieters’s argument that DC Garrison would have apologized and not been rude to a White person was found to be too speculative.

With regard to the second allegation, Vice-Chair Bhattacharjee found that:

• Pieters saw an interaction between a group of police officers and two Black men, one of whom was being arrested, and Mr. Pieters shouted at the officers to stop assaulting the man because he was not resisting.
• PC Hassard asked Mr. Pieters if he knew the two men with whom the police officers were interacting, and when he responded that he did not, she said words to the effect that if he continued shouting, he would be arrested.
• Pieters asked PC Hassard to take his business card to be called as a witness, but she refused to take it.

Again, although Vice-Chair Bhattacharjee believed that his findings indicated adverse treatment, he was unwilling to infer that Mr. Pieters’s race, colour, ancestry, and ethnic origin were factors in the treatment. He noted that “it is not in dispute among well-informed, reasonable persons that for a variety of reasons police officers do not like it when bystanders of any race shout at officers during an arrest.” With regard to PC Hassard’s refusal to accept his business card, Vice-Chair Bhattachajee felt this was more likely due to Mr. Pieters’s having identified himself as a lawyer than to any prohibited ground of discrimination. As above, Vice-Chair Bhattachajee felt that PC Hassard’s failure to document the encounter was not a significant deviation from normal practices sufficient to indicate racial profiling or discrimination.

As is often the case when determining whether discrimination has occurred, the challenge in this case was not in determining whether Mr. Pieters was a member of a protected group or whether he experienced adverse treatment; the challenge was determining whether the former was a factor in the latter. This decision provides principles and considerations that can assist in a discrimination analysis while confirming the need for clear and cogent evidence to support any inferences that might be made by the decision-maker.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.