“You are not a good fit for us” – expert evidence and systemic discrimination in the workplace

Author: Lai-King Hum[1]

A. INTRODUCTION

Violations of the right to be protected against discrimination under the Human Rights Code (“Code”) are often rooted in prejudices or assumptions about a person’s abilities, capabilities and potential. In the workplace, reasons such as “you are not a good fit for us”, “we hired someone with more energy”, “you are not right for our company image”, and “you are not suitable for management” can be veiled means of discrimination, oftentimes unintentional, and may indicate a wider pattern of discrimination at a systemic level.[2]

As opposed to direct discrimination, cases involving “the subtle scent of discrimination”[3] are challenging and difficult to prove without the support of statistical data and an investigation into social and organizational culture. The appropriate use of expert evidence can lend weight to allegations of systemic discrimination cases and shift the burden of proof. There are issues to consider when using such expert evidence. A review of cases where such expert evidence has been used in the workplace context highlights how expert evidence has been used and the issues to consider when using expert evidence.

Take for instance, the saga of Dr. Sangha. He unsuccessfully interviewed in 2001 for an entry-level position as a Regulatory Officer with the MacKenzie Valley Land and Water Board.[4] Dr. Sangha had a university degree from India, post-graduate studies in Germany, and over a decade of professional experience in India and Germany, including with the German federal government. He was fluent in German, Punjabi, Hindi and English, had co-authored two books and had written a number of research papers in the environmental field. However, once he immigrated to Canada, he had difficulty finding permanent work, and was working as a bookkeeper at the time of his interview.

The Board received 38 applications for 4 Regulatory Officer positions, chose 12 candidates to interview, and asked each applicant a standard set of questions. The Interview Committee, after deliberation, based their hiring decisions on the resumes, the interview notes, who they considered would be a “good fit”, and the knowledge and experience the applicant could bring to the position. There was consensus amongst the Interview Committee not to offer Dr. Sangha the Regulatory Officer position. The reasons were that he was overqualified for the entry-level position; they believed he would be bored by the type of work required; and he was not a good fit for the position. They believed that the other candidates were much better suited. Not a single Committee member asked why he was applying for the entry-level position, whether he would find the job unchallenging or boring, and whether he would likely leave at the first opportunity.

Was there discrimination in this case?

B. THREE-PART TEST FOR DISCRIMINATION

The test for proving discrimination in the workplace, where there is only circumstantial evidence, can be found at Clennon v. Toronto East General Hospital[5] at para. 69:

[69] The three part test for circumstantial evidence cases is well-established in the Tribunal’s jurisprudence and recently has been stated in Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 (CanLII) at paras. 51-52. The application of this test involves the following three steps:

1. Initial evidentiary burden is on the applicant to establish, on a balance of probabilities, a prima facie case of discrimination in employment based on the prohibited ground of age;

2. Burden then shifts to the employer to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration;

3. If the employer is able to rebut the prima facie case, the burden returns to the applicant to establish, again on a balance of probabilities, that the employer’s explanation is erroneous or a pretext masking the discriminatory ground.

The central issue is “whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent”. Where an applicant fails to establish a prima facie case, the respondent is not required to provide a reasonable explanation. In such cases, the onus shifts to the respondent to provide a reasonable explanation, or to establish a bona fide occupational requirement to justify the differential treatment.

C. ESTABLISHING A PRIMA FACIE CASE OF DISCRIMINATION

To establish a prima facie case of discrimination, as outlined in a 2012 decision of the Ontario Court of Appeal, Shaw v. Phipps[6], the complainants must be able to show that:

  • They belong to a protected group under the Code;
  • They were subjected to adverse treatment; and
  • Belonging to the protected group (race, colour, gender, etc.) was a factor in the alleged adverse treatment.

The test used in the employment context for discrimination in hiring and promotion situations is discussed in Shakes v. Rex Pak Ltd. (1981), 3 O.H.R.R.C./1001, at para. 8918:

  1. The complainant was qualified for the particular employment;
  2. The complainant was not hired; and,
  3. Someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

However, the Shakes test “is not a rigid approach that defines a prima facie case in every hiring case” (Zhao v. Toronto Community Housing Corporation, 2012 HRTO 2187, a case involving an allegation of age discrimination)[7], and that “…comparative evidence of discrimination comes in many more forms than the particular one identified in Shakes” (Morris v. Canada (Canadian Armed Forces), 2005 FCA 154 (CanLII) at para. 28). Ultimately a prima facie case is made when it covers the allegations made, and if believed, is sufficient to justify a finding of discrimination in the absence of any response from the responding party.

The complainant has the initial evidentiary burden of showing on a balance of probabilities a prima facie case of discrimination. Although the onus shifts to the respondent if a prima facie case has been made out, the ultimate burden of proof remains with the complainant.

In Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 (CanLII)[8], the Tribunal analyzed the onus of proof at paras. 154-155:

[154] The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41 at para. 46. [155] The initial onus is on the applicant to establish, on a balance of probabilities, 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 (SCC), [1985] 2 S.C.R. 536 at para. 28. If the applicant establishes a prima facie case of discrimination, the respondent must establish, on a balance of probabilities, a statutory defence and/or a credible non-discriminatory explanation for the impugned treatment. If the respondent is able to rebut the applicant’s prima facie case of discrimination, the burden returns to the applicant to establish, on a balance of probabilities, that the respondent’s explanation is erroneous or a pretext for discrimination. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 (CanLII) at para. 52. The ultimate issue is whether the applicant has proven, on a balance of probabilities, that a violation of the Code has occurred. Although an evidentiary burden to rebut discrimination may shift to the respondent, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII) at paras. 112 and 119.

D. DR. SANGHA’S USE OF EXPERT EVIDENCE

The case of Dr. Sangha is an important decision that has been cited in subsequent cases, and shows how expert evidence was called to establish a prima facie case of discrimination, which ultimately was not refuted by the respondent.

The Canadian Human Rights Commission brought a discrimination case forward on behalf of Dr. Sangha to the Canadian Human Rights Tribunal. At the hearing before the Tribunal, the Commission called an expert on race and ethnic relations and immigration issues as they relate to employment. The expert’s opinions showed a link between Dr. Sangha’s race, national or ethnic origin, colour, religion, and age, and the refusal by the Board to hire him for the Regulatory Officer position. In response, the Board called its expert witness to show that human resources decisions based on such rationale as over-qualification and “fit” are not uncommon, and not discriminatory.

The Commission asserted that “decisions not to hire ‘overqualified’ job applicants have an adverse effect on the visible minority immigrants”, and that “[o]verqualification is an illegitimate criterion to use when applied to this particular group” [at para. 111]. The Commission’s expert, Dr. Jeffrey Reitz, a University of Toronto professor, arrived at five supporting conclusions:

(1) immigrants are, on average, more highly educated than native-born Canadians;

(2) visible minority immigrants face barriers to employment at their level of qualification;

(3) as a result of barriers, immigrants are under-represented in highly skilled professional or managerial jobs and are over-represented in lower-skilled jobs, compared to Canadians with the same paper qualifications;

(4) immigrants often accept work for which they are overqualified because they are denied employment at their level of qualification; and

(5) there is no human resources principle regarding the hiring of overqualified workers.

[at paras. 118-145]

 

The Board’s expert witness, Dr. Derek Chapman, took the position that “not selecting candidates for positions of employment on the basis of poor person/job fit, including overqualification is a widely practiced human resource selection method” [at para. 153]. Dr. Chapman also identified consequences of hiring an overqualified candidate, or one who is a poor person/job fit for the organization and the individual himself. He produced a study, which showed that there is a “strong relationship between person/job fit, job satisfaction and organization commitment” [at para. 163], and that hiring of a “poor person/job fit leads to an early voluntary turnover”, which would “incur a huge costs to the organization” [at para. 164].

The Tribunal found in the favour of Dr. Sangha. Based on the expert evidence of Dr. Reitz on race relations and immigrant experience that established a link between certain protected grounds and the adverse consequences experienced by Dr. Sangha, the Tribunal accepted that the experience of applying for a job for which one is overqualified is disproportionately an immigrant experience. It followed that an employer’s rule against the hiring of overqualified candidates was discriminatory, as the rule had an adverse impact on visible minority immigrant candidates.

The Commission was able to, through expert evidence, establish that a prima facie case of discrimination was made. Following the test as set out in Clennon, above cited, once the prima facie case was made, the onus shifted to the Board to rebut the prima facie case. However, the Board’s expert evidence failed “to refute the correlation between overqualified status and visible minority immigrant status” [at para. 205].[9]

This case is one example of how the use of expert evidence was used to establish a prima facie case of systematic discrimination in the workplace context. Of note is that the Commission brought the case on behalf of Dr. Sangha, and would have borne the costs of the expert evidence.

E. FACTORS TO CONSIDER IN USE OF EXPERT EVIDENCE

The admission of expert evidence has to meet the criteria that were established by the Supreme Court of Canada in R. v. Mohan, [1994] 2 SCR 9, 1994 CanLII 80 (SCC):

  • Relevance;
  • Necessity in assisting the trier of fact;
  • Absence of any exclusionary evidentiary rule precluding the expert’s evidence; and
  • The expert is properly qualified, with special expertise outside the knowledge of the trier of fact.

The evidence must be shown to be useful in the particular case. In a case brought forth by the Ontario Human Rights Commission, Yousufi v. Toronto Police Services Board, 2009 HRTO 1587 (CanLII), the Tribunal considered the Toronto Police Service Board’s request to exclude the evidence of the Commission’s proposed expert witness, Mr. Charles Smith.

The applicant, who self identified as a non-white person of Afghan descent perceived to be of the Muslim faith, had filed two complaints before the Tribunal. In the first complaint, Mr. Yousufi alleged that he experienced harassment and was subjected to a poisoned work environment because of his ethnic origin and creed. In the second complaint, the complaint alleged that he experienced negative workplace consequences as a result of filing the first complaint, such as the denial of training and the elimination of his position.

The Tribunal refused to allow Mr. Smith’s expert opinion evidence, finding that “the matters … are within the expertise of the Tribunal and also relate to the ultimate issue in dispute” and that the “proposed evidence” would not be “helpful or necessary” [at para. 10]. Further, the Tribunal noted:

[4] Expert evidence is a type of opinion evidence which is generally inadmissible unless it meets certain criteria as set out R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 … [5] It is unnecessary to address Mr. Smith’s expertise, in light of my finding that his opinion evidence will not be admitted. [6] In Persaud v. Toronto District School Board, 2008 HRTO 92 (CanLII), at paragraph 14, the Tribunal explained the application of some of these principles in the context of human rights applications:

As stated above, expert evidence must also be “necessary” to assist the trier of fact. I accept and endorse the comments in the case law that necessity should not be judged by too strict a standard, and that this standard is somewhat lower in a human rights proceedings: see Johnson v. Halifax (Regional Municipality) Police Service [2003] N.S.H.R.B.I.D. No. 2 at paras 92 and 93; Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 (CanLII) at para. 36. I also accept and endorse the comments from the Johnson decision that expertise in racism and expertise in discrimination are two different things, and that human rights adjudicators do not necessarily possess expertise in racism, which is a social phenomenon that takes many guises and is studied in many different environments and contexts. At the same time, I need to determine whether the proposed expert evidence is necessary to assist me as the trier of fact, in the sense that it is outside my experience and knowledge.

F. LINK BETWEEN EVIDENCE AND THE INDIVIDUAL APPLICANT’S CASE

Even where the expert evidence does show systemic discrimination, a link still has to be made between the evidence and the individual applicant or plaintiff’s case. Applicants may not advance claims of systemic discrimination independent of their claim that their own rights have been violated.

In Abdolalipour v. Allied Chemical Canada Ltd., [1996] O.H.R.B.I.D. No. 31, expert evidence by itself was found to be insufficient to draw any conclusions, without establishing the appropriate links to the case before the Tribunal.

Both Mr. Raed Murad and Ms. Masumeh Abdolalipour alleged discrimination when they were denied the position of permanent lab analyst at Allied Chemical Canada Ltd. While the Tribunal found for Mr. Murad, in that “he had experienced discrimination on the basis of his race, colour, and ancestry and that as a result, he was denied the position of permanent lab analyst for which he was qualified and to which he objectively would have succeed” [at para. 205], the Tribunal was unable to conclude that Ms. Abdolalipour would have succeeded in her candidacy for the permanent lab analyst position. However, the Tribunal did conclude that Ms. Abdolalipour’s gender, race, and colour were factors in the assessment of her work performance and the discrimination she faced in the hiring process, as well as exposure to a poisoned work environment.

The Commission produced Ms. Shahnaz-Khan as an expert witness on the impact of racism or sexism on women and persons of colour. Ms. Khan tendered a report and numerous articles as part of her evidence. In arriving at its conclusion, the Tribunal considered witness testimonies as well as expert evidence from both parties [at paras. 189 – 191]:

[189]This is a very complex case as I believe is evident from the facts brought out in evidence as set out at length above. The type of discrimination being alleged is not of the sort that would be obvious or even clearly intentional. There is ample evidence of strong personalities and strong feelings, exacerbated in some instances by the effects of a very intense and bitter strike. Most of the evidence is circumstantial requiring me to draw inferences. In her book, Proving Discrimination in Canada, Béatrice Viskelety notes that there is virtual anonymity that the usual standard of proof in discrimination cases is a civil standard of preponderance or balance of probabilities:

  • The appropriate test in matters involving circumstantial evidence, which should be consistent with the standard, may therefore be formulated in this manner: 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 hypothesis. (page 142)

[190] Racial discrimination, like discrimination on the basis of gender is most likely to operate not consciously but through assumptions and biases that are largely unconscious; see the remarks of the Ontario Court of Appeal in R v. Parks (September 23, 1993) and the decision of the Ontario Board of Inquiry in Richard v. Waiglass, supra, at page 16. It follows that attitudes tainted by racial bias are more likely to influence a workplace where there has been no active or systematic encouragement to examine the assumptions on which subjective evaluation and hiring processes operate. It also follows, given the clear societal recognition that explicit racial comments are unacceptable that the simple absence of such comments by itself says little about the existence of attitudes that are unconsciously tainted by racial biases and this could equally be said for gender discrimination. [191] The Commission forcefully advances the view that a racially homogeneous work force is a strong indicator that racial biases and attitudes are present in the workplace. Typically, when Boards of Inquiry have considered whether conclusions can be drawn about hiring practices from a review of workforce profiles, they have concluded that the lack of applicant flow data means that no reliable conclusions can be drawn. The Commission urges me to adopt a principle that where census data indicate that the representation of racial minority employees in a particular workforce is lower than the representation of members of racial minorities in the surrounding area, the conclusion should be drawn that racial bias exists in the hiring process in the absence of any reason to believe that the applicant pool is less than representative. I am further urged to place the evidentiary burden on the Respondents on the basis that they control the information about who was applying. I agree that evidence about the representation of racial minority employees in the work force relative to the representation in the surrounding area of population is appropriate for consideration as one factor that a Board of Inquiry would be expected to take into account. However, I am not satisfied that the fact of a disproportion should by itself warrant a conclusion that racial bias exists in the absence of the Respondents discharging the burden of proving that the applicant pool was unrepresentative. Equally, I am not willing to accept the conclusion apparently drawn by Ms Khan that a person in a racially homogenous work environment inevitably faces “massive exclusion, isolation and alienation within the work place”. Indeed, the testimony of the complainants in this proceeding does not bear out that [emphasis added]

In Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (CHRT)[10], less evidence was required to make the link and establish a prima facie case, given the great disparity that the statistical data showed in the existence of systemic barriers in the promotion of visible minorities and non-visible minorities.

Dr. Chopra had filed a complaint with the Canadian Human Rights Commission and alleged that his employer, the Department of National Health and Welfare, had subjected him to adverse differential treatment based on race, colour, and national or ethnic origin generally, but in particular with respect to the Department’s staffing process, and treatment on his performance appraisals.

Throughout the proceedings, numerous expert and non-expert witnesses were produced. Expert witnesses produced opinions relating to employment data involving visible minorities. In considering the data and the reports, the Tribunal held [at para. 211]:

[211]In the context of the present case, therefore, even if the existence of systemic barriers to the promotion of visible minorities into the EX group was established, the Commission would be required to demonstrate a link between this evidence and the evidence, both direct and circumstantial, of individual discrimination in Dr. Chopra’s situation, in order for a prima facie case to be established. However, the greater the disparity in the data between visible minorities and non-visible minorities, the less the necessity of other evidence, in order to make out a prima facie case.

The Tribunal was satisfied that Dr. Chopra had established a prima facie case of discrimination, and the Department of National Health and Welfare was unable to rebut with a reasonable explanation of its conduct [at para. 283]:

[283] … I am therefore satisfied that it can be reasonably inferred that the failure to offer Dr. Chopra the opportunity to act in the post of Director-Human Prescription Drugs… was at least in part due to the Assistant Deputy Minister’s perception that Dr. Chopra was not suitable for that managerial position because of his “cultural background”, that is, his national or ethnic origin.

The link to the applicant is further clarified in Carasco v. University of Windsor, 2012 HRTO 195, where Ms. Carasco brought a complaint against the University of Windsor for discrimination on the basis of race and sex, as well as systemic discrimination on the same grounds. The University of Windsor successfully sought an early dismissal of part the case on the basis that Ms. Carasco did not have standing. The Tribunal held that the applicant could bring an application for allegations of infringement of her rights, including systemic discrimination as it related to her individual rights, but not for allegations in the public interest unrelated to her rights.

G. JUDICIAL NOTICE OF SOCIAL SCIENCE EVIDENCE TO DEMONSTRATE SYSTEMIC DISCRIMINATION

As noted above, the costs of advancing expert evidence can be prohibitive. Nonetheless, expert evidence may also be introduced through reference to expert evidence that is not before the court.

Though it was not material to the ultimate decision, in Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII), the Court of Appeal considered the issue of the Vice-Chair’s reference in the original decision to social science evidence. The Divisional Court found, in the judicial review, that “there was no evidence adduced that was sufficient to establish the nexus with the complainants’ race or colour”[11], and that the Vice-Chair had improperly resorted to earlier tribunal decisions involving racial profiling by police officers.

In concluding that the Divisional Court erred in its analysis, Justice Juriansz, for the Court of Appeal, reviewed the Vice-Chair’s use of social science evidence, namely, the reference to Nassiah v. Peel Regional Police Services Board, 2007 HRTO 14 (CanLII), and made the following findings [at paras. 120 – 124]:

[120] I accept the respondents’ contention that a tribunal needs to exercise care in taking judicial notice of social science not introduced in evidence before it. The parties do not have the opportunity to challenge the matter judicially noticed and it may be wrong. At the same time, social science can deepen the understanding of interactions between individuals generally, thus assisting the adjudication of a particular case. Balance and judgment is necessary to ensure that judicial notice of social science not in evidence does not result in unfairness. [121] In this case, I am not persuaded that any unfairness resulted from the Vice-Chair’s reference to Nassiah. The reference did not affect his disposition of what I regard to be the main issue in the case—whether the appellants’ race and colour were factors in their selection for questioning. At most they played a minor role in his finding that their race and colour were factors in the manner in which they were questioned. After referring to Nassiah, the Vice-Chair was careful to point out he had “already” made findings about the manner in which the librarian had questioned the appellants. The librarian had “interrupted [the first appellant] while he was on the telephone and, it appears, did not introduce herself to the applicants and [the articling student]”. Furthermore, “[f]rom all the evidence, including the personal respondent’s testimony of how she generally carried out this function”, the Vice-Chair concluded that “the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge”. These findings of fact relate to the particular encounter in this case; they are not based on generalizations drawn from social science. [122] Setting aside the fact the social science was not in evidence, the Divisional Court should have deferred to the Vice-Chair’s greater expertise in assessing whether the “difference between what occurred here and a police investigation” was so significant that Nassiah was unhelpful. The Vice-Chair, no doubt, had read the entire review of the expert evidence in Nassiah. The expert testified at paras. 127 and 129 that:

127 Some police officers, like some members of the general public have specific racial prejudices and deliberately single out and treat some members of racial minorities more harshly than others.

129 The third potential cause of racial profiling is that police officers, like all members of society, develop unconscious stereotypes about racial groups and subconsciously act on those stereotypes during routine police investigations. [Emphasis added].

[123] Finally on this point, I note that neither the Divisional Court nor the respondents expressed any issue with the actual proposition the Vice-Chair drew from Nassiah. The proposition that implicit stereotyping can affect the manner in which individuals continue to deal with others after an encounter begins does not seem to me to be a matter that would provoke much controversy. [124] While I accept that a tribunal must exercise care and caution in taking judicial notice of social science evidence introduced in another case, there was no unfairness done in this case. The Vice-Chair’s resort to Nassiah was of no material consequence to his decision.

H. USE OF EXPERT EVIDENCE IN EMPLOYMENT CASES

The following are some examples of how expert evidence has been used, by both complainants and respondents, to address systemic discrimination in the workplace:

National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare), 1997 CanLII 1433 (CHRT)

The National Capital Alliance on Race Relations (“NCARR”) is a non-profit organization whose mandate is to fight discrimination and racism through political action, education, and where appropriate, through legal action. NCARR filed a complaint with the Canadian Human Rights Commission against the Department of Health and Welfare (“Health Canada”), alleging systemic discrimination in staffing issues.[12] NCARR focused on two job categories, Scientific and Professional (“S&P”) category and the Administrative and Foreign Service (“A&FS”) category. The evidence showed that approximately 75% of senior management were recruited from the S&P category and 25% from the A&FS category.

The three-member panel of the Tribunal accepted and used expert evidence to assist them in a finding of whether or not there was systemic discrimination in Health Canada’s staffing issues. The expert evidence looked into systemic barriers in staffing and in the Staffing Development Programs, such as: ghettoization in the workplace, less encouragement of visible minorities, informal staffing decisions, perceiving visible minorities as unfit for management, and under-representation in senior management positions.

The expert evidence concluded that members of visible minorities were under-represented in senior management positions at Health Canada and instead were concentrated at the lower levels from which they were not promoted to management positions.[13] In this case, the complainants were found to have made a prima facie case of discrimination, and the respondent failed to rebut the evidence.

The Tribunal concluded that Health Canada did engage in certain staffing
practices, contrary to section 10 of the Canadian Human Rights Act (“CHRA”), and ordered Health Canada to adopt and implement special, permanent and temporary employment equity corrective measures, with a view to achieving equitable representation of minorities in their workplace.

Murray v. Canada (Immigration and Refugee Board), 2009 PSST 33 (CanLII)

This was a complaint of abuse of authority under the Public Service Employment Act. Murray was a Case Officer at the IRB in Toronto. He complained that the IRB’s choice to use a non-advertised appointment process to appoint staff to more senior positions discriminated against him on the basis of race, and alleged further that this non-advertised process constituted systemic discrimination where job barriers result in the clustering of visible minorities in Case Officer positions.

Murray called an expert witness to give testimony about her work on systemic discrimination. She explained that the issue of systemic discrimination required an understanding of the dynamics of systemic discrimination which creates preference and bias, and that this could lead to institutions setting up employment systems that have, as an unintended consequence, discrimination against specific groups. The complainant alleged that he had established a prima facie case.

The Tribunal noted that evidence of systemic discrimination is admissible as circumstantial evidence of direct individual discrimination. However, as the Tribunal noted, the expert stopped short of concluding that she found systemic discrimination in the IRB workplace [at paras. 91 – 92]:

[91] To support his argument that these clusters are the result of systemic discrimination, the complainant relies on the expert testimony and report of Dr. Agocs. In her report, at pages 6-7, Dr. Agocs concludes as follows:

On the basis of the evidence available to me I conclude that the career advancement of Mr. Murray and other visible minority employees in the Toronto office has probably been restricted by a number of job barriers which are part of a pattern of systemic racial discrimination.

[…]Evidence to substantiate or refute the allegation that systemic discrimination has resulted in the exclusion of Mr. Murray, as well as other visible minority employees, from consideration for the Tribunal Officer positions, and from other career development opportunities, could be provided by an in-depth audit.

[92] On Dr. Agocs’ own admission in her report, she appears to be acknowledging that there is insufficient evidence to substantiate the allegation of systemic discrimination. While it is, ultimately, for the Tribunal to make this determination, it is telling that it is the complainant’s expert witness who has offered this tenuous conclusion.

The Tribunal concluded that Murray had not established a prima facie case of discrimination, and his complaint was dismissed.

Espey v. London (City), 2008 HRTO 412 (CanLII)

When this case was heard, a number of other firefighter cases had already been decided, and a mandatory retirement age had been justified as a bona fide occupational requirement. However, in considering this case, the Tribunal noted:

[5] However, the previous cases do not necessarily determine the result in this case. First, the issue of whether the respondents have successfully justified the requirement as a BFOR depends upon the evidence, in particular the expert scientific evidence, introduced in this case. Scientific research has developed since the other cases were decided. Moreover, the legal landscape has changed. Section 24(2) of the Code came into force in 1988, and provides some guidance on the considerations involved in determining whether a requirement is a BFOR. In 1999, the Supreme Court of Canada released its decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), in which it revised the legal test for establishing a BFOR by requiring evidence that the claimant could not be accommodated without experiencing undue hardship. The Commission asserts that these developments are significant.

Espey challenged the City of London’s mandatory retirement policy (the “Clause”) for firefighters and added the London Professional Firefighters’ Association. The Association and the City admitted the Clause was prima facie discriminatory, however they argued the Clause was justified as a bona fide occupational requirement (“BFOR”) under s.24(2) of the Code. This justification was based upon the risk of cardiac events, which were found to increase dramatically with age. Moreover, firefighters engaged in fire suppression while on duty were at a considerably higher risk of such events. Consequently, the Association and the City asserted that there was no violation of the Code. Additionally, the City and Association asserted that the Clause was reasonable and that a change would cause undue hardship.

Espey and the Ontario Human Rights Commission argued that individual testing could be used to demonstrate a firefighter’s risk of cardiac events, which could be instituted at age 60.

The Tribunal upheld the Clause, finding that it had valid health and safety objectives. In making this determination, the Tribunal relied extensively on the respondents’ evidence in justifying a BFOR, as the evidence demonstrated a connection between elevated health risks of firefighters and older age. The Tribunal found that mandatory retirement was rationally connected to the work of a firefighter, to protect health and safety and was adopted in good faith to promote health and safety.

The Tribunal also found age was a significant contributor to risk of cardiac events and the corresponding safety consequences to be grave. Individualized testing was not found to be determinative of the issues, and no scientific research was presented to show whether a risk analysis could be done for firefighters. The system as per the collective agreement was found to protect firefighters through an unreduced pension applying equally as they age. To disturb this system would cause undue hardship. Therefore, the Tribunal concluded the burden to prove a BFOR had been met.

Kelly & Vilven v Air Canada et al. [14]

Canada entered a post-mandatory-retirement age in 2012.[15] On November 23, 2006, a change to the rules of the International Civil Aviation Organization (ICAO), a UN organization charged with fostering civil aviation safety of which Canada is a signatory, made it mandatory that Captains/Pilots-in-Command between the ages of 60 and 65 may continue to fly internationally, but only if one of the other pilots in a multi-pilot crew is under 60. Air Canada changed its policies and imposed mandatory retirement at age 60 for all its pilots. Two pilots, Kelly and Vilven, challenged Air Canada’s forced retirement policy on the basis of discrimination in employment based on age, and further constitutionally challenged the CHRA. As their cases wound through Tribunal hearings, appeals to the Federal Court, appeals to the Federal Court of Appeal, and ultimately, a dismissal of the final appeal to the Supreme Court of Canada in 2013, the law ultimately changed with an amendment to the CHRA.

Expert evidence, including statistical data and flight safety procedures used by Air Canada, and labour economics evidence of the negative effects of mandatory retirement used by the pilots, was reviewed by the Tribunal in considering: the “normal age of retirement” under the CHRA; whether mandatory retirement was a bona fide workplace requirement; and whether there would be undue hardship on Air Canada to accommodate the pilots. The pilots were ultimately unsuccessful at the Federal Court of Appeal, which held [at para. 89]:

[89] The Federal Court decided in Vilven that the Tribunal’s conclusion that age 60 was the normal age for pilots was reasonable, see Vilven, cited above, at para. 174. Since paragraph 15(1)(c) of the CHRA is constitutionally valid, and since the Pilot’s complaints were caught by paragraph 15(1)(c), it follows that their complaints should be dismissed.

The pilots’ further appeal to the Supreme Court of Canada was dismissed, with costs to the respondents, except for the Canadian Human Rights Commission.

I. CONCLUSION

As challenging and difficult as it is to prove discrimination at a systemic level, parties may look to introducing expert evidence in order to lend weight to their positions: to infer discrimination through circumstantial evidence of discrimination with statistical data or social-economic-cultural context, or to rebut a prima facie case discrimination by providing a reasonable explanation or a bona fide occupational requirement justification.

In the employment context, we have seen parties call upon expert witnesses to testify in their areas expertise, or present reports, articles, and/or statistical data in order to lend support to the party’s positions. Nonetheless, the use of expert evidence may be greatly limited by the prohibitive cost of advancing expert evidence; however, parties may introduce expert evidence that is not before the adjudicator through referencing other prior decisions, in so far as it remains relevant and timely. For some parties, the provincial or federal Human Rights Commission may intervene in a particular matter and absorb the costs of expert evidence.

While proving systemic discrimination remains a perplexing issue in the employment field, the appropriate use of expert evidence has been found to be successful and oftentimes, necessary in order to establish a prima facie case of discrimination.

[1] Lai-King Hum is the Principal and Senior Lawyer of Hum Law Firm, a boutique practice focused on employment and workplace law, human rights, and administrative law. She thanks Allisa Wu, a lawyer with the firm, for her assistance with this paper.

[2] See the Ontario Human Rights Commission’s Policy and guidelines on racism and racial discrimination , and in particular its Appendix – Workplace policies, practices and decision-making processes and systemic discrimination, for examples of subtle discrimination in the workplace.

[3] See Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT), and cited in Murray v. Canada (Immigration and Refugee Board), 2009 PSST 33 (CanLII).

[4] Sangha v. Mackenzie Valley Land And Water Board, 2006 CHRT 9 (CanLII).

[5] Clennon v. Toronto East General Hospital, 2009 HRTO 1242.

[6] Shaw v. Phipps, 2012 ONCA 155 (CanLII).

[7] Zhao alleged age discrimination when he failed to obtain an interview for a position. He relied on the prima facie case test set out in Shakes v Rex Pak Ltd., (1981) 3 C.H.R.R. D/1001 (link to decision): (i) He was qualified for particular employment; (ii) He was not hired; and (iii) someone no better qualified but not identified with the ground alleged subsequently obtained the position. According to this test, the respondent must then provide evidence to rebut an inference of discrimination. The Tribunal dismissed the case in a summary hearing without requiring the respondent to rebut any inference of discrimination. The Tribunal held that the allegations of age discrimination were speculative, in light of the available evidence before it about the job competition and the interview process. Referring to Diab v. Ontario Lottery and Gaming Corporation, 2011 HRTO 2093, the Tribunal stated that “the issue is whether there is anything about the circumstances of the particular competition that is suspect or may be out of the ordinary and requires the respondent to provide an explanation for and/or disclosure to justify its decision.”

[8] This case involved discrimination because on the basis of sex (sexual harassment and solicitations) and disability, and reprisals.

[9] Dr. Sangha was successful in proving discrimination. However, based on the conclusion that Dr. Sangha had only a mere possibility rather than a serious possibility of obtaining the posted position, the Tribunal denied Dr. Sangha the remedy instatement and compensation for lost wages, and awarded instead damages for his pain and suffering of $9,500 (the Tribunal noted that the maximum amount of $20,000 is reserved for the most egregious of cases). Dr. Sangha sought judicial review of the Tribunal decision. The Federal Court found that the Tribunal had erred in finding, based on an assessment of the evidence, that Dr. Sangha did not have a serious possibility of acquiring the position. The Federal Court allowed the application for judicial review, set aside the decision of the Tribunal and remitted the matter back to the same Tribunal member for reconsideration in accordance with the Federal Court’s reasons. Sangha v. Mackenzie Valley Land and Water Board, 2007 FC 856 (CanLII).

[10] This was the second decision on the merits of the case, as the first decision was set aside by the Federal Court of Canada and remitted to the Tribunal to be reconsidered.

[11] Peel Law Association v. Pieters, 2012 ONSC 1048, at para. 41.

[12] A jurisdictional issue was raised regarding the standing of the NCARR to file the complaint. In response, NCARR argued that, to the extent that the complaint involved under-representation of a designated group, it was an issue of employment
equity, not one of discrimination.

[13] However, in Chopra v. Canada (Department of National Health and Welfare), the same expert evidence presented in the National Capital Alliance case was not accepted. The respondents’ argument that there were errors in the methodology in the Commission’s experts was accepted.

[14] Vilven filed his complaint in 2004 against Air Canada, and Kelly in 2006 against both Air Canada and Air Canada Pilots Association. The case was heard together by the Tribunal in 2007. History of Case:

Vilven v. Air Canada, 2006 CHRT 35 (CanLII) (interested party status for Air Canada Pilots Associaton).

Vilven v. Air Canada, 2006 CHRT 47 (CanLII) (additional interested parties added).

Vilven & Kelly v. Air Canada, 2007 CHRT 36 (CanLII) (Tribunal dismissed complaints).

Vilven v. Air Canada, 2009 CHRT 24 (CanLII) (Pilots successful in claim of discrimination).

Kelly v. Air Canada and Air Canada Pilots Association and Vilven v. Air Canada, 2010 CHRT 27 (CanLII) (hearing on determination of damages).

Kelly & Vilven v. Air Canada and Air Canada Pilots Association, 2011 CHRT 10 (CanLII)

(Air Canada was able to justify discrimination on basis of bona fide occupational requirement, and accommodation would impose undue hardship).

Air Canada Pilots Association v Kelly, 2011 FC 120, and Vilven v. Air Canada, 2009 FC 367 (judicial review of Tribunal dismissal) appealed to Air Canada Pilots Association v. Kelly, 2012 FCA 209 (CanLII).

The decision was yet further appealed and dismissed with costs to respondents, except Canadian Human Rights Commission, Robert Neil Kelly, et al. v. Air Canada Pilots Association, et al., 2013 CanLII 15565 (SCC).

[15] As of December 2012 mandatory retirement has been eliminated across Canada. Although discussed at the federal level since as early as the 1990s, a legal prohibition against age discrimination was only seriously considered in late 2011, after the required amendments to the Canadian Human Rights Act were proclaimed. As a result, federally regulated employers are prohibited from discriminating against individuals over the age of 18 on the basis of age. A similar prohibition on age discrimination was established in the Ontario Human Rights Code somewhat earlier, in 2006, while age discrimination in B.C. was banned only in 2008. Quebec banned the practice considerably earlier as: discrimination on the basis of age has been illegal in Quebec since 1982.

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