Inference from the Evidence
A recent decision of the B.C. Human Rights Tribunal has once again considered the question of “reasonable inference” from the evidence before it to determine whether the employer had acted adversely to the complainant in respect of race. 1
Often, in cases of race or similar allegations such as age and religion, there is an absence of direct evidence. It has become the task of the decision maker to determine if the case before them may be shown often by circumstantial evidence.
The law has been clear for many years that relatively “little affirmative evidence” is required in such cases for the inference to be allowed. 2 The standard of proof requires “only that the inference be more probable than not”. 3 4 This is so as in human rights cases, there is very rarely direct evidence proving a human rights violation. 5
It then becomes the often challenging issue before the tribunal to view all of the circumstances to determine if there exists the “subtle scent of discrimination”. 6 8
This may be particularly so in cases involving allegations of racial discrimination due to the "subtle, pernicious nature" of such conduct. 9
In Mema, the Tribunal specifically rejected the submission made by the City that adverse discriminatory conduct may be proven only by direct evidence.
The Tribunal in this case spoke with approval of the comments made in Campbell which then stated:
an inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: .... In this case, the question is whether an inference of discrimination is more likely than the VPB’s explanation for the officers’ conduct. In making this assessment, it is not necessary that the officers’ conduct be consistent only with the allegation of discrimination and not any other rational explanation: Phipps at para. 17.
The Campbell decision went on to consider the "broader social context" and noted that particular conduct may be individually explained away or be shown to be ambiguous, yet, nonetheless may lead to the inference of abusive conduct when viewed "as part of the larger picture and with an appropriate understanding of how racial discrimination takes place...".
The two B.C. decisions of Francis and recently Mema have now added to this already diificult analysis the factor of a pre-existing social disadvantage suffered by the members of the minority group.
Historical Disadvantage
These two decisions have referenced the presence of “any historical disadvantage” suffered by the protected class as a factor to be considered in detecting whether there has been show the “subtle scent” of prohibited conduct. One might question how such a factor would be relevant in the search for the existence of such conduct in a given case. Certainly, most minority groups arguably have endured such past intolerances.
This particular factor was referenced in Francis 10 in which it was determined that "any historical disadvantage" was to be considered as a relevant factor in determining the presence of the "subtle scent" of adverse treatment:
A contextual examination of all relevant circumstances is often required to identify the "subtle scent of discrimination": Kennedy v. British Columbia (Energy and Mines) (No. 4), 2000 BCHRT 60 [ 39 C.H.R.R. D/42], para. 168. For example, one such contextual circumstance is any historical disadvantage experienced by the group: Mezghrani v. Canada Youth Orange Network Inc. (CYONI) (No. 2), 2006 BCHRT 60 [CHRR Doc. 06-066], para. 28.
The Tribunal in Francis cited Mezghrani as authority for this proposition. It strains credulity to see this decision as supporting this principle. The complaint in this instance was dismissed. The Tribunal in this latter case did speak to the test of reasonable inference from the evidence and did say the following at paragraph 28, which is the passage referenced in Francis:
What I must determine is whether there is a reasonable basis in the evidence on which a conclusion in Mr. Mezghrani’s favour could be reached. In approaching this task, I am mindful of the fact that “discrimination is not a practice which one would expect to be displayed openly”: ....... In particular, discrimination on the basis of race is frequently subtle. Direct evidence of racial discrimination is rarely available, and such discrimination must often be inferred from the conduct in issue. Those observations were made in Basi, which was written nearly 20 years ago. Given the progress in Canadian society in that time period, in which overt racism has become even less acceptable, it is likely that racial discrimination has become even more subtle. In many cases, the “subtle scent of racism” may have become very hard to detect. That said, in order for a finding of racial discrimination to be possible, there must still be some evidence from which such discrimination could be inferred.
[29] In this case, there is no direct evidence of racial discrimination or discrimination on the basis of place of origin. In the circumstances, I must look at the evidence as a whole to determine if there is a reasonable basis in it for concluding that discrimination may have occurred.
The Tribunal in Mema continued this theme and cited Francis as its authority for including the factor of such a historical disadvantage as a factor in the determination of such a reasonable inference. 11
The Test
The essential issue then becomes whether the evidence, considered in its entirety, would lead, on a balance of probabilities, to show the inference:
In sum, as stated earlier in this decision, I have applied the recognition by courts and human rights Tribunals of pervasive stereotypes of Black men in my consideration of the issue before me. That issue is whether the evidence as a whole could support an inference that, on a balance of probabilities, Mr. Mema’s protected characteristics factored into the City’s suspension and termination of his employment.
In the Mema case, the complainant had held a senior financial management position, had used the corporate credit card for personal use and had lingered in his obligation to repay the sum charged for personal use, yet ultimately did repay such charges. The City had commissioned an internal audit after these issues had surfaced.
Also, a "Misconduct Report" had been initiated, again, after these events, including after the audit. The Tribunal spoke to this conduct as one motivated by racial discrimination:
This broader perception of risk and suspicion further support the inference. Ms. Mercer testified that in her view, there was still risk after the P-card audit because Mr. Mema had other avenues for personal gain. It is not clear what she thought those other avenues were, or why the P-card use triggered such suspicion. It is not clear why she believed that Mr. Mema’s use of the P-card lent itself to a greater propensity for misappropriation. Mr. Mema had taken no steps to conceal his use of the P-card for personal purchases. Rather, he was open about it and made efforts to repay the amounts. He was supportive of his staff when they followed up with him for repayment and when they escalated their concerns. Mr. Mema’s use of the P-card for extensive personal use amounts to poor judgment, certainly, but I am satisfied that it is more likely than not that the extrapolation of Mr. Mema’ P-card use to a broader risk of his engaging in some kind of financial malfeasance was informed at least in part by his protected characteristics.
For these reasons, this "Misconduct Report" was found to be "informed by racial stereotype":
I have discussed earlier in this section the pernicious stereotypes about Black men, including as being more prone to dishonesty (see also Turner v. Canada Border Services Agency, 2020 CHRT 1), violence or criminality (see also Knoll North America Corp. v. Adams, 2010 ONSC 3005 at para. 47, affirmed on judicial review). I have also acknowledged the subconscious ways in which such stereotypes can operate. Here, Ms. Slater took a number of things about which she knew relatively little and connected the dots between them through a lens of concern about Mr. Mema’s propensity for financial malfeasance, which had the effect of characterizing him as a criminal.
[343] For all of the reasons set out above, I am satisfied that the Misconduct Report was informed by racial stereotype, and as such, am satisfied that it was connected to Mr. Mema’s protected personal characteristics.
[344] I want to pause here to reiterate my comments above that I accept that Ms. Slater sincerely believed she was acting in line with her training and ethical principles in respect of the expected behaviour of a CFO. I have reviewed above the insidious ways that racial bias lives in many of our subconscious. It lives there not necessarily because we seek it or choose to give it space but because, as courts and tribunals have recognized time and again, it is planted there by the systems in which we all exist: Turner at para. 49, and Knoll at paras. 20 and 47. Further, I emphasize that this hearing is about the actions of the City, which I evaluate next in the context of the suspension and termination of Mr. Mema’s employment.
The Misconduct Report was hence tainted as hence was the suspension decision and further the termination of the complainant's employment.
Mema was successful in his claim. He was awarded compensatory damages of $50,000 and a lost income claim of $583,000. The latter award was discounted by 25% to reflect the influence of adverse reports surrounding his prior termination with an earlier employer.