The recent Ontario Human Rights Tribunal case of MacNeil v. LOFT Community Services got me thinking about the shifting burden in discrimination cases. In this case, the Tribunal dismissed the complaint because the complainant had not met the onus that was upon him of establishing a prima facie case of discrimination.
The Tribunal's approach in these cases is described in Jagit v. IN TECH Risk Management as follows:
[18] The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.
[19] It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions.
It is only upon establishing a prima facie case, that the burden shifts to the respondent (e.g. employer) to provide a "credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory".
A three-step analysis has been applied in these cases to determine if a prima facie case of discrimination has been made out.
This approach was recently discussed by the British Columbia Court of Appeal in Armstrong v. British Columbia (Ministry of Health):
It was set out by Chief Justice Finch in Health Employers Assn. of British Columbia v. British Columbia Nurses’ Union, 2006 BCCA 57 (CanLII), 2006 BCCA 57, 264 D.L.R. (4th) 478, a case involving the provision of the Code (s. 13) dealing with discrimination in the employment context:
[38] ... Therefore, under s. 13(1)(a), to establish a prima facie case of discrimination, an employee must establish that he or she had (or was perceived to have) a disability, that he or she received adverse treatment, and that his or her disability was a factor in the adverse treatment ...
Again, it is only where the complainant can make out a prima facie case of discrimination that it becomes necessary to determine whether there was a bona fide and reasonable justification for the discrimination.
Furthermore, on the prima facie test, Madam Justice Abella's comments in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal are of assistance:
[49] What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
[50] If such a link is made, a prima facie case of discrimination has been shown. It is at this stage that the Meiorin test is engaged and the onus shifts to the employer to justify the prima facie discriminatory comment.
Employer's often don't put the employee/complainant to the onus of showing a prima facie case (or at least vigorously putting the complainant to the onus). Maybe that's not surprising given that the prima facie hurdle is a relatively low one, but, in an appropriate case, it is important to push the issue. As the cases above show, in an appropriate case, this can result in a positive and cost effective outcome for the employer and an early dismissal of the complaint.
