part 4 - discrimination analysis (claim and justification)

Question 1

Two parts

Answer 1

1. Prima facie case of discrimination

2. Justification of discrimination

Question 2

burden of proving discriminatory practice on who

Answer 2

claimant

Question 3

what does claimant need to show

Answer 3

• Denied or treated different wrt a good, service, accommodation or employment
• On one of the 11 prohibited grounds of discrimination (s.3)

Question 4

onus of justifying a prima facie case of discriminatory

Answer 4

onus switched to respondent to justify the discriminatory practice

Question 5

what are justifications for discrimination

Answer 5

• based on a bona fide occupational requirement (“BFOR”)

- there is bona fide justification (“BFOJ”) for that denial or differentiation

Question 6

for any employment practice to be a bona fide occupational requirement, and for any other practice to have a bona fide justification, the respondent must establish that

Answer 6

“accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”

Question 7

prima facie case and then

Answer 7

whether the claimant has established a discriminatory practice
and then ask if the respondent has met that there is a bona fide practice (could not otherwise accommodate short of undue hardship

Question 8

Problem with direct and indirect discrimination

Answer 8

depending on how you originally characterize the nature of the discrimination leads to different remedies

Question 9

direct discrimination

Answer 9

Treat adversely or deny expressly on a ground of discrimination. The discriminatory practice is on the face

Question 10

indirect/ adverse discrimination

Answer 10

Practice is neutral on its face, but in effect adversely treats on the basis of a ground

Question 11

direct discrimination standard of justification and results

Answer 11

only justify direct discrimination if the statute allows them to justify it as bona fide (subjective + objective)
- If no such clause exists, or cannot meet this burden, then this remedy is that they MUST change the practice

Question 12

indirect discrimination standard of justification and results

Answer 12

• Respondent never required to justify an indirect discrimination as bona fide
• Instead, they must show you that there is some rational connection between practice and nature of discrimination - don’t need to show that it’s necessary but that it’s not irrational
• They don’t need to change the practice, but accommodate the individual

Question 13

direct discrimination case examples

Answer 13

Etobicoke and Stratford

Question 14

indirect/ adverse discrimination examples

Answer 14

O’Malley and Renaud

Question 15

Etobicoke and Stratford facts

Answer 15

Provision of collective agreement that when you reach certain age, terminated

Question 16

Etobicoke and Stratford prima facie case

Answer 16

direct on the face of the practice

- You lose your job because of your age

Question 17

How do we judge if its bona fide?

Answer 17

Subjective element and an objective

Question 18

Subjective element of bona fide

Answer 18

employer must show that they did this in good faith, no ulterior motive

Question 19

objective element of bona fide

Answer 19

employer must show and demonstrate that it is indeed necessary for the job

Question 20

Etobicoke and Stratford subjective

Answer 20

DF argues that since it was argued in good faith of the parties, it must be bona fide. Employee and employer both agreed, must have been good faith and necessary
- Court says that this can’t be the case, because otherwise this would allow parties to contract out of their human rights obligations

Question 21

Etobicoke and Stratford objective

Answer 21

• To justify early retirement in interest of safety, employer must demonstrate of relationship of sufficient risk
• Employer does not meet this burden, court says evidence mostly impressionistic, “young man’s game”

Question 22

O’Malley and Renaud facts

Answer 22

employment scheduling

Question 23

what is the court uncomfortable with indirect discrimination justifications

Answer 23

Once you engage, no justification available. Court is uncomfortable with automatic remedies, maybe this is ok with direct D, but employers who engage in general practice that results in adverse effects, leaves innocent discriminators defenceless

Question 24

what is the practice assumed to be in indirect d

Answer 24

practice is assumed to be bona fide

- presumed from lack of intention

Question 25

what does the q become in indirect

Answer 25

Could you accommodate short of undue hardship (evidentiary burden)

Question 26

in indirect, what is the respondent not asked

Answer 26

respondent not asked if its bona fide

Question 27

what things must respondent do in indirect

Answer 27

1. Show that discriminatory practice is rationally connected, not arbitrary, most often this is implied from its neutrality
2. Can’t accommodate short of undue hardship

Question 28

Meiorin

Answer 28

CREATES UNIFIED FRAMEWORK

Question 29

Meiorin facts

Answer 29

• M was a firefighter
• Employer implemented a fitness test after 3 years of employment
• Fired
• She claimed that the test created adverse effect discrimination because it was more difficult for women to pass than it was for men

Question 30

why is Meiorin indirect

Answer 30

• This running test is indirect because it’s for everyone, on its face it’s not discriminatory
• But because of difference bw men and women, in effect disproportionally effects women

Question 31

COURT CRITIQUE OF BIFURCATED FRAMEWORK in meiorin

Answer 31

• Artificial distinction between direct and indirect
• Remedies
• Assumption that the minority is affected in the cases of neutral practices (not a numbers game)

Question 32

Artificial distinction between direct and indirect (meiorin)

Answer 32

• Not so easily categorized (you could move between them by function of design, so why should we hold it as distinct categories when it’s totally manipulative)
• The modern employer rarely does it directly, when they could do it indirectly (becoming manipulative discriminators, doing it undercover)

Question 33

There is in effect little difference in the application of the two justification standards (meiorin)

Answer 33

• To ask about reasonable accommodation essentially asks the question: could you do this differently
• If you could accommodate for one, why couldn’t you accommodate for many, and change the practice

Question 34

meiorin ratio

Answer 34

Bifurcated is a false distinction. From perspective of claimant doesn’t matter if its direct or indirect, so you shouldn’t be entitled to a different remedy
- Gives unified framework

Question 35

unified framework 3 questions (meiorin)

Answer 35

1. employer adopted standard for a purpose rationally connected to job performance
2. adopted in honesty and good faith - subjective
3. standard/practice is reasonably necessary to the accomplishment of that legitimate work-related purpose - objective

Question 36

employer adopted standard for a purpose rationally connected to job performance (meiorin)

Answer 36

Purpose of practice has to be connected to the job

- low standard, just needs to not be arbitrary

Question 37

adopted in honesty and good faith - subjective (meiorin)

Answer 37

Adopt this practice in good faith belief that it was necessary to achieve that purpose
- Low standard, looking for no bad intention

Question 38

standard/practice is reasonably necessary to the accomplishment of that legitimate work-related purpose - objective (meiorin)

Answer 38

• Must SHOW with evidence it is impossible to accommodate - Can employer demonstrate that this practice is reasonably necessary
• Can only do this if they show they cannot adopt a more inclusive practice short of undue hardship

Question 39

Evidentiary burden in step 3 of unified test

Answer 39

process and substance

Question 40

process (unified)

Answer 40

show me the process that you adopted it. Validate your methods for having used this test. Show me that you consulted someone, well- reasoned and explored choice

Question 41

substance (unified)

Answer 41

court looks at alternative practices and asks why you didn’t apply these more inclusive practices. Have to show undue hardship from adopting a more inclusive practice. Have to show why your test, in substance could not have been different

Question 42

Grismer facts

Answer 42

• G was truck driver, drove for years and had a stroke
• BC has blanket provision preventing anyone without peripheral vision from having drivers license
• G has HH which reduces the scope of peripheral vision
• He was refused individual assessment and was not allowed to receive a license and was therefore unable to complete his job

Question 43

Innovation of unified

Answer 43

that duty to accommodate to undue hardship is incorporated into the bona fide standard

• Means no longer maintain d practice and accommodate principles
• Equality built into the practice, you must change your practice, practice must be more accommodation - in all cases change practice

Question 44

unstable framework

Answer 44

• set of divided courts, grappling with what the nature of the public law project was, ask “what is discrimination”
• show some hesitation with human rights project

Question 45

McGill University Health Centre facts

Answer 45

• Claimant worked for McGill Health Center and took a leave of absence after she had a nervous breakdown
• When rehab period in collective agreement was up she was going to go back to work but was in a car accident
• Hospital terminated employment after prolonged absence
• Clause in agreement said unless work related disease/injury would be terminated after 36 months
• Employer had extended this period for her but ultimately ended employment

Question 46

abella in mcgill

Answer 46

• For a practice to be discriminatory, adverse effect has to be based on stereotypical or arbitrary assumptions about a ground
• Not just on a basis of a ground but arbitrary assumptions about the ground

Question 47

what does abella in mcgill want to do

Answer 47

Wants fourth requirement: stereotype or arbitrariness

- Needs something more than adverse effect on the basis of ground, needs arbitrary or stereotypical treatment on ground

Question 48

critique of abella in mcgill

Answer 48

• not all discrimination comes from stereotypes
• Talking about reasonableness and arbitrariness of practice are questions of justification, should not be on the claimant to prove it was on the basis of stereotype (this onus is on the respondent)

Question 49

Bombardier facts

Answer 49

• Canadian pilot (Mr. Latif) born in Pakistan trying to get training at US post
• Needed a clearance check to fly in US
• Didn’t pass test and as a result also couldn’t training
• Also was refused training at the Montreal center because of the decision of the US
• Argues that US authority decision to deny training was on the basis of racial profiling, and by relying on that decision, the Canadian facility also discriminated on the basis of origin

Question 50

Bombardier issue

Answer 50

What is “prima facie” discrimination and what degree of proof is required in order to establish it?

Question 51

Bombardier reasoning

Answer 51

• Court holds that evidence must be tangibly related to the specific decision or conduct. Have to show and PROVE
• Bombardier could not show that IN THIS CASE, one of the grounds was the basis for refusal - evidence needs to be to your specific case, direct evidence

Question 52

Bombardier ratio

Answer 52

Ground has to be A factor in the adverse treatment, need not rise to level of cause

Question 53

Stewart facts

Answer 53

• Stewart worked in a mine
• Employees expected to disclose any dependence/addiction issues before any drug related incident occurred, would be offered treatment
• If they failed to disclose and were involved in an incident and tested positive for drugs, terminated
• Stewart used cocaine on his days off, did not tell employer, was involved in an accident tested positive for drugs, terminated

Question 54

stewart majority reasoning

Answer 54

Majority said no prima facie case, must show that the ground was a factor in adverse treatment, and this didn’t happen here

• Terminated based on breach of policy - which is not prima facie
• Crt said drug dependence was not A factor in his termination

Question 55

stewart dissent

Answer 55

How can you find no connection bw his drug dependence and his positive testing for drug use, which was clearly basis on policy was applied and he was terminated. Says connection is obvs

Question 56

Systemic Discrimination case

Answer 56

Moore

Question 57

Proving SD

Answer 57

Radek, Johnson, Pieters

Question 58

Remedying SD

Answer 58

Action Travail, McKinnon

Question 59

Moore facts

Answer 59

• M had severe learning disability and needed intense remedial instruction, but was not available in the public-school system (diagnostic center closed, district citing budgetary crisis, brought on by provincial budget cuts)
• He had to go to private school and parents had to pay for it

Question 60

why are effects of SD hard to see

Answer 60

adverse effect is difficult to see because we rationalize it away
- the characteristic comes to define the very nature of the job or service itself - become normative, we don’t see their exclusionary effects

Question 61

Moore reasoning

Answer 61

• Abella says systemic d only becomes visible in its effects. That its its defining feature. Can rarely be seen in individual claims of d, but only visible in cumulative effect, in the pattern that practice produces over and over again

Question 62

what does abella say about statistics in Moore

Answer 62

• Statistics can lead you, they’re a good start for proving that ground was a basis for adverse effect, but they’re not conclusive
• So what can you rely on? How do you show that ground was a factor? Drawing of an inference

Question 63

Radek v Henderson development facts

Answer 63

• R was a disabled and Aboriginal woman who frequented a shopping mall owned by H
• She was questioned and followed in the mall and they asked her leave and they wouldn’t tell her why
• It happened all the time

Question 64

Radek v Henderson development reasoning

Answer 64

• Didn’t prove it by statistics
• Tribunal validated her claim by drawing inference from documentary evidence, and logs of security incident reports
• Security policy for these guards rely on category of “suspicious persons”

Question 65

Johnson facts

Answer 65

Johnson (black driver) testified that had had been stopped by police 28 times without a valid reason for 6 year

Question 66

Johnson reasoning

Answer 66

Strains the imagination” that there is nothing systematic happening - race was having some kind of factor
- An inference could be drawn

Question 67

Peel Law Association v. Pieters facts

Answer 67

• P and N lawyer for a case and in the lawyer lounge in the library
• P and N are black
• A librarian came up and asked them for identification and didn’t ask anyone else in lounge

Question 68

Peel Law Association v. Pieters reasoning

Answer 68

• Ample direct evidence in this case to support inference that race was factor in librarians questioning
• Challenged only those men, and no one else
• Unable to offer credible explanation for why she had selected them
• Social science evidence is the backdrop

Question 69

Peel Law Association v. Pieters ratio

Answer 69

• Social science can be used to give context to a case but not to decide it
• Circumstantial evidence can be used for systemic discrimination bc it cannot be proven otherwise

Question 70

Pieters and bombardier set limits on inferences drawn from circumstantial evidence how

Answer 70

circumstantial evidence must be related to case at hand

Question 71

how do you remedy SD

Answer 71

• Because of way SR operates, can’t target practice itself - too many of them
• Instead you target the effect - design remedies to undo the effect

Question 72

best tool to remedy SD?

Answer 72

creating opportunities for people to access jobs, education services

Question 73

Action Travail des Femmes orders

Answer 73

• Too many instances of sex d in CN to try to go through and fix them
• Tribunal, in order the remedies, asked them to cease d practices (aptitude test or physical tests)
• Also ordered CN to shift workplace culture and prevent future d
• To do this, order: adopt practices that would lead to critical mass of women in your workforce
• Bring in women, that’s your task

Question 74

Action Travail des Femmes results

Answer 74

report by CN was sporadic, quota systems = reorganized workplace to have 13% in each unit so you can claim you have 13% in each unit, hired women but any new opportunity, changed and promoted within so they could hire within
- 0.1 increase overall lol

Question 75

Problem of systemic remedy is not if you have authority to order them…

Answer 75

Have the legal authority, but don’t have capacity to make meaningful orders, systems you are trying to change are complex systems
- And people who are masters of this system are the people you are ordering; they know how to get around the orders

Question 76

McKinnon and Ontario Human Rights Commission v. Ontario facts

Answer 76

• Racial discrim at work at a penitentiary
• Remedial orders at both individual and systemic level
• M kept returning for 13 years to tribunal bc the orders weren’t being implemented and people just became more careful about how they discriminated

Question 77

McKinnon and Ontario Human Rights Commission v. Ontario ratio

Answer 77

Ultimate failure of HR law to bring about change
- Case shows broad reach of remedial authority of independent administrative agencies, can continue to show jurisdiction over and over, but nothing changes