Thursday, January 5, 2017

Nordheimer J.'s Dissent in Shaw v. Phipps the Cornerstone of the Divisional Court's Flawed Decision in Peel Law Association

   In Shaw   v.   Phipps 2010 ONSC 3884  a majority of the Divisional Court upheld a decision of the Human Rights Tribunal of Ontario (HRTO) finding that P.C. Michael Shaw had discriminated against Ronald Phipps on the basis of race contrary to s.1 and 9 of the Human Rights Code. This is the case in which Mr. Phipps - a man of African-Canadian background, while delivering mail in his full Canada Post letter carrier uniform was approached for questioning by P.C. Shaw.

  Nordheimer J. penned a strong and forceful dissent proclaiming;

"Where I part company with my colleagues is regarding their conclusion that the Liability Decision meets the standard of reasonableness as we have defined it.  For the following reasons, I have concluded that the Liability Decision does not meet the standard and must be set aside."

[139]   In order to establish a prima facie case of discrimination three elements must be shown. Those elements are:

(i)   that the complainant belongs to one of the groups that are protected by the Code;

(ii)   that the complainant has suffered adverse treatment, and ;

(iii)   that there is some evidence of a nexus between the prohibited ground and the adverse treatment.

[141].....We know that Mr. Phipps is a black man (element #1) and we know that Officer Shaw stopped and questioned him (element #2) but the facts that would form a nexus between those two elements are missing from the Tribunal's reasons.  With respect, they are similarly absent from my colleagues' reasons.

Peel Law Association   v.  Pieters 2012 ONSC 1048

Two years or so later Justice Nordheimer's dissent formed the cornerstone* of the Divisional Court's decision in Peel Law Association   v.  Pieters  2012 ONSC 1048.  In that case the Divisional Court overturned a decision of the Human Rights Tribunal of Ontario's finding that the Peel Law Association discriminated against high profile African-Canadian lawyer, Selwyn Pieters, on the basis of race for singling him out for questioning in their lawyer's lounge at the Peel Court House.  This is what the unanimous Divisional Court wrote in setting aside the decision of the HRTO:

[47]   In summary, the Tribunal erred in determining there was a prima facie case of discrimination.  No evidence was adduced that was capable of supporting the finding of a distinction or differential treatment or that any such treatment was motivated by race or colour.

[48]   Moreover, by failing to require the complainants to satisfy the nexus requirement the Tribunal improperly revered the burden of proof placing an impossible onus on the applicants to disprove discrimination.

Court of Appeal Speaks on "Causal Nexus":

Roughly a year later the Court of Appeal for Ontario corrected the Divisional Court's legal error in Peel Law Association   v.  Pieters  2013 ONCA 396.

[60]   I do not think it acceptable, however, to attach the modifier "causal" to "nexus".  Doing so seems to me to elevate the test beyond what the law requires.  The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.

[61]   I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case.  This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination.

Commentary and Analysis:

   The requirement of a "causal" "nexus" or a "causal link" as a prerequisite to establishing a prima facie case of discrimination under the Human Rights Code is a defence for those accused of violating the Code.   Justice Nordheimer makes this point clearly in the following passage of his dissent:

[178]   Reaching a conclusion that a person has acted in a racially discriminatory fashion is an extremely serious finding, especially so where the person holds a public office as police officers do. Suspicion about a person's motivations is an insufficient basis to reach such a conclusion. There must be a solid evidentiary foundation for such a finding and the evidence that forms that foundation must be set out with clarity....

[179]   In my view, it would be very difficult for Office Shaw to understand the base of knowledge or experience that was relied upon by the Tribunal to reject his explanations for his actions and even more difficult to understand the basis upon which the Tribunal concluded that his actions were the result of discrimination.  

*The panel does not quote or cite the dissent but the nexus requirement is clearly there. The Court of Appeal notes that it does not know from where the Divisional Court got this test. Readers should review paragraphs 139-142 in Justice Nordheimer's dissent in Shaw supra.

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