Offensive actions based on race, religion, gender and similar protected grounds are typically not direct. This also may often be the case for other forms of human rights violations.

As noted above, such a case may be proven by reasonable inference.

In addition, given that the evidence, as in such forms of “subtle” discrimination cases is indirect and circumstantial, the employee may assert statistical data to support an argument of a systemic pattern of discrimination in hiring and termination decisions.

The original test for proving a prima facie case in a case asserting adverse treatment due to age came from a 1981 decision. ¹ This was not a case based on age, but rather race. This case and its evolution still applies to cases involving the denial of a promotion or refusal to hire in such a context of “subtle” adverse treatment as would be the circumstance of any such case.

Essentially the decision stated that comparative evidence of respective merits of the person denied and the person awarded the position was required to make out the prima facie case.

The conditions to be met, as then established, were as follows: (1) the applicant proves that he or she possesses the necessary qualifications for the position and (2) that needless to say, he or she was not hired or promoted and (3) a person who in the case of an allegation made by an older person, that a person younger was hired ² and that this person was no better qualified than the applicant. The context will, of course, change with the nature of the discriminatory conduct as alleged.

This test was initially modified to reflect a fact situation in which the employer did not make an immediate hiring decision but continued to look for other candidates after rejecting the complainant who had met the qualifications for the vacancy. ³ It was then determined that it was not necessary to show that someone with no better skills than Dr. Israeli, but lacking the distinctive feature, was hired.

Both these cases involved hiring as opposed to promotion issues.

These cases were again reviewed at which time it was concluded that the real test remains, namely, will the evidence prove the case, in the absence of defence testimony. ⁴ It was then noted that the above referenced cases may serve as guideposts, but they should not be applied mechanically or by rote. The issue should be simply is the case proven, in the absence of an affirmative defence. ⁵

An example of such an affirmative defence to rebut the prima facie case confronting the employer was seen in a recent tribunal decision. ⁶

The applicant had proven a prima facie case of adverse treatment due to age with respect to her submission for the promoted position of Vice-Principal at Lord Dufferin School. The evidence offered to support this preliminary step was as follows:

1. The applicant was qualified for the promotion and had been placed on the list of eligible candidates;
2. She remained on this list for 21 months;
3. Some 27 persons had been promoted during the time she was on this list;
4. Some of the successful candidates received their qualifications in the 1990’s, some 20 years later than the applicant, as was the case two years later;
5. The applicant met all the qualifiers, save experience as a Vice-Principal;
6. The winning candidate lacked experience with a particular community group judged by the Principal and parents as important and was 20 years younger than the applicant’
7. The Principal thought that the applicant was the ideal candidate.

This evidence is instructive of the merits of a prima facie case which was established.

The respondent was hence called upon to give evidence, which was convincing and won the day. The Board’s witness explained the process of promotion did not allow a candidate to be chosen from the same school to which the appointment was intended. The claim was dismissed.

The nature of such rebuttal evidence explaining why the prima facie case should not succeed may at times be a difficult issue for the decision maker to consider. The more direct the affirmative evidence, the stronger will be the employer’s case to deflect from the alleged code violations. Cases in which the employer states that the applicant, for example, was not the right “fit”, often may be viewed skeptically. Such a factor may well be entirely legitimate but this explanation has been noted as one which “at times can be used to conceal discriminatory considerations”.⁷ It is hence preferred that the evidence of the employer be based on “objective and non-discriminatory criteria and assessments” based on “actual characteristics and qualities”.⁸

Often a question may be put to a job applicant which addresses what is seemingly a neutral job requirement may produce a discriminatory result. For example, a question about loyalty to one’s country may result in an answer which reveals the religious code of the applicant as being opposed to the war effort in Afghanistan. ⁹ Similarly a question such as “are you prepared to work weekends” which mandates an exception based on religious grounds would be similarly offensive.

The Ontario code specifically deals with this issue by defining that the rights of the applicant in this context are infringed. ¹⁰

An early decision of the B.C. tribunal ¹¹ considered the right of the employer to ask a candidate questions relating to the any past serious illness, injury or condition or had this person received compensation for such an injury. One might question why such questions would be asked, if the intended use of the answers was benign, as suggested and even accepted in the decision. The asking of such questions was found not to be adverse effect discrimination and no violation was found. This cannot be the law today, even absent a statutory provision as exists in Ontario.

This issue and the above case were referenced in a case involving questions which were asked to those persons seeking membership in the B.C. Law Society which were inquisitive  of certain mental disorders, such being schizophrenia, paranoia, or a mood disorder described as a major affective illness, bipolar mood disorder, or manic depressive illness. The tribunal found the asking of such a question was a Code violation. ¹²

This issue of adverse treatment due to age was again considered by the federal tribunal. ¹³ The issue raised was what evidence would be required to satisfy the prima facie test to prove the allegation that the complainant had been denied promotions due to his age.

It was determined that the qualifications of the successfully promoted persons in past years were not necessary for the applicant to create a prima facie case. As long as the evidence shows that such adverse treatment was a factor in denying the promotion, such a case has been made out and the burden to call affirmative evidence will go to the employer.¹⁴

A complicating factor in the Tribunal decision was that the employer had not made disclosure to the applicant of comparable scores of the successful applicants on certain test scores on which the applicant had shown low scores.

The failure to make disclosure of this material caused the Tribunal to discount the explanation offered by the employer in its defence and hence found in favour of Morris at the first level.

This decision was set aside, ¹⁵ holding that such comparative evidence of the successful candidates was required. ¹⁶

This decision was again appealed ¹⁷ which set aside the decision of Simpson J. and restored the award of the Tribunal. In effect, the Court determined that Shakes and Israeli cases are but sign posts of what type of evidence may prove a prima facie case and are not cemented mandatory touch stones. A “flexible legal test of a prima facie case is better able than more precise tests to advance the broad purpose underlying the Canadian Human Rights Act, namely, the elimination in the federal legislative sphere of discrimination from employment…”.

This remains the generally accepted test of adverse treatment due to a human rights issue resulting in the loss of a promotion or denial of employment. ¹⁸

 

was dismissed. On the issue of age, the Tribunal had found that the facts supported a prima facie case requiring the employer to provide a rational explanation for its conduct. Singh had applied for the position which had been award to K. Pursuant to the eligibility process then in place, Singh was to be placed in this position following K.’s departure.

The employer asserted that the position no longer existed at that point as K. had performed so well, its functions were no longer required. Singh contradicted this evidence by stating that the employer was still seeking persons to fill this position. On this issue, the evidence was contradictory. The Tribunal concluded no case was proven.

1. Shakes v Rex Pak Ltd.
2. That is the person selected lacks the distinguishing human rights related feature, see Kartuzova v HMA Pharmacy
3. Israeli v Canadian Human Rights Commission 1983 4 CHRR D/1616; aff’d )
4. The Canadian Human Rights Tribunal in Singh v Statistics Canada (1998); affirmed Canada (A.G.) v. Singh (April 14, 2000)
5. For a general review of the process of establishing a prima facie case to which the employer must lead affirmative contrary evidence, see Clennon v East General Hospital (Hart)
6. Waters v Toronto District School Board (Liang), a decision made in January of 2010.
7. White v Queen’s University
8. White v Queen’s University
9. Cybulski v Canadian Corp of Commissioners
10. S. 11(1) Ontario Human Rights Code. The employer may show that the issue is nonetheless a reasonable and bona fide job requirement.
11. Then known as B.C. Council of Human Rights’ in Dhaliwal v Westcoast Cellufibre 
12. Gichuru v Law Society of B.C.
13.   Morris v Canadian Armed Forces (Hajdis)
14. Chander v. Department of National Health and Welfare [1995] at page 10, aff’d in Federal Court; The reliance on this decision was later set aside as in Chander there were no alternate candidates 
15. in Federal Court, styled Canada (Attorney General) v Canada (Human Rights Commission)
16. It was also held that the negative inference drawn by the Tribunal on the failure of the employer to produce relevant evidence, such could not be used to get past the gateway of a prima facie case.
17. Federal Court of Appeal
18. Nelson v Lakehead; Rafiz v Scotia Capital; Kelly v NS Liquor; Alberta v Alberta Union of Provincial Employees; FCA Canada v Johnstone