RULESWATCH

May 2, 2009

Practice and Human Rights: Discrimination/Inference/Onus and Prima Facie Case

Filed under: 1 — ruleswatch @ 10:42 am

(Thank you Linda Panos-MacKay and University of Calgary Faculty of Law, “Ablawg”)

A case, and a post in the University of Calgary’s Faculty of Law Ablawg [Http://ablawg.ca]highlight the ongoing issue of establishing a prima facie case in human rights litigation.

There, so often what is at issue is not the fact of the differential treatment, but rather, whether there is a discriminatory motivation– explicit evidence is rarely advertised and often difficult to find or unravel — underlying that treatment. Playing on that onus can be an attractive tactic for respondents in responding to a complaint. (In this case, a supervisor and the most immediate witness at least to events failed to appear with difficult consequences for any complainant, but particularly one who is not represented.)

Under the title “How does a complainant prove that he/she has experienced racial discrimination?,” Linda McKay-Panos, the Executive Director of the Alberta Civil Liberties Research Centre has highlighted the statutory appeal decision of the Alberta Court of Queen’s Bench in Workeneh v. 922591 Alberta Ltd., 2009 ABQB 191

There, Justice A.G. Park considered a decision in which the province’s Human Rights tribunal dismissed a human rights complaint finding a failure to make a prima facie case. The judge overturned the Human Rights Panel’s dismissal of the complaint based on a conclusion that the complainant had failed to make a prima facie case of discrimination. The decision was sent back to be considered for remedy.

Ms. Workeneh, an African-Canadian, and the only black staff member working as a personal care worker in a home for special care, learned that she was receiving lower pay, benefits on less favourable terms and other working conditions less favourable than all other employees.

Employees, indeed, had received written instruction not to talk to her about their own salary and benefits. A written request to discuss the difference was ignored by her employer. Workeneh complained of race and colour discrimination in employment to the Alberta tribunal.

At the hearing her supervisor did not appear, there was evidence of competing reasons why she might have been treated differently and her complaint dismissed by the Alberta tribunal on the grounds that she had failed to make out a prima facie case.

Park, J. found differently. Reviewing the evidence, he corrected erroneous findings of the panel on evidence, which had in turn been used to question the complainant’s own credibility.

Post author Mckay-Panos goes on to summarize, “Justice Park concluded that the Panel erred in law in its failure to infer from the facts that Workeneh experienced racial discrimination. Justice Park relied on a quotation from B. Vizkelety in Proving Discrimination in Canada (Toronto: Carswell, 1987) at 142: “an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses.”

In Justice Park’s opinion, the following facts constituted a prima facie case of discrimination based on circumstantial evidence: • Workeneh was black; • Workeneh was paid substantially less than her white co-workers; • Her supervisor wrote a letter to the other staff to advise them not to disclose their salary details; and • Workeneh was as well qualified, if not better qualified than many of her fellow employees for the same type and nature of employment. ”

The language of the decision place the disposition in its legal context: “[27] …Without any conflicting evidence or explanatory testimony from Starr or 922591, the inference that is more probable than not, is that Workeneh was taken advantage of due to her colour and/or race. The Panel failed to draw any inference from any of the evidence. This failure is an error of law reviewable on a correctness standard. The Panel was not correct when it failed to draw the only probable inference available to it on the evidence – the inference of discrimination…”

On February 20, 2009, a differently constituted panel under the Alberta Human Rights Act awarded the complainant, more than $52,000 in compensation.

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