The OHRC intervened at the Tribunal in a complaint by Ron Phipps – a case which raised some tough issues. The Tribunal ruled Phipps had been subjected to racial profiling in 2005 by a Toronto police officer. The officer stopped Phipps when he was delivering mail in an affluent Toronto neighbourhood, checked with a homeowner Phipps spoke to, trailed him and checked his identity with a White letter carrier.
The Tribunal said that although there was no overt racism, racial profiling had occurred. Although this incident happened five years ago, it serves as an important reminder that racial profiling exists and is not acceptable in policing or security. It confirms that racial profiling can be a systemic act that people are not even aware they may be doing, showing the challenges out there for those with a mandate to eliminate it.
Court File no. C53665
COURT OF APPEAL FOR ONTARIO
MICHAEL SHAW AND CHIEF WILLIAM BLAIR
RONALD PHIPPS, TORONTO POLICE SERVICES BOARD AND
THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
ONTARIO HUMAN RIGHTS COMMISSION
FACTUM OF THE INTERVENOR
ONTARIO HUMAN RIGHTS COMMISSION
ONTARIO HUMAN RIGHTS COMMISSION
180 Dundas Street West, 9th Floor
Toronto, ON M7A 2R9
Tel: (613) 326-7250
Fax: (613) 536-7255
Counsel for the Intervenor
Ontario Human Rights Commission
TO THIS HONOURABLE COURT:
Borden Ladner Gervais LLP
Barristers and Solicitors
Scotia Plaza, 40 King Street West
Toronto, Ontario M5C 3Y4
Kevin A. McGivney LSUC #32370R
Tel: (416) 367-6118
Fax: (416) 361-2471
Lisa C. Cabel LSUC #50719P
Tel: (416) 367-3217
Fax : (416) 361-2710
Lawyers for the Applicants
AND TO :
Thomas Law Professional Corporation
1400-10 King St. E
Toronto, Ontario M5C 1C3
Tel: (647) 347-5450
Fax: (647) 723-7431
Counsel for the Respondent,
c/o City of Toronto Legal Services
Station 1260, 26th Floor
55 John St.
Toronto, Ontario M5V 2C6
Tel: (416) 338-2338
Fax: (416) 397-1765
Counsel for the Respondent,
Toronto Police Services Board
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Human Rights Tribunal of Ontario
655 Bat Street, 14th floor
Toronto, Ontario M7A 2A3
Tel: (416) 326-1312
Fax: (416) 326-2199
Counsel for the Human Rights Tribunal of Ontario
1. The Ontario Human Rights Commission (“Commission”) intervenes in this appeal, pursuant to the order of O’Connor A.C.J.O. dated August 4, 2001.
2. The Commission submits that this appeal should be dismissed because:
- The Human Rights Tribunal of Ontario (“HRTO”) is a specialized expert tribunal. The standard of review of its decisions calls for the highest level of deference to its findings of fact, the inferences that it draws from facts, and its determination as to whether Code rights were infringed.
- The HRTO decision reflects that the three-part test for a prima facie case of discrimination was met. Mr. Phipps is a black man who was stopped and questioned by the police. His race played a part in the decision to stop and question him.
- Circumstantial evidence plays a critical role in racial discrimination cases, particularly in determining whether it is reasonable to infer that the claimant’s race played some role in the adverse treatment suffered by the claimant. Here, circumstantial evidence supported the inference that Mr. Phipps was stopped and questioned, in part because of his race.
- The HRTO decision is consistent with racial discrimination jurisprudence, including recognition that racial discrimination can be subtle, pervasive and unconscious.
PART I – FACTS
3. The HRTO issued a decision in the human rights application, filed by Ronald Phipps (“Phipps”) against Constable Michael Shaw (“Shaw”) and Chief William Blair, of the Toronto Police Service, and the Toronto Police Services Board (“TPSB”), on June 18, 2009 at the conclusion of a hearing into the merits of Phipps’ application.
Phipps v. Toronto Police Services Board, 2009 HRTO 877 (CanLII) (“HRTO Decision”), Appeal Book, Tab 7
4. By decision dated October 6, 2010, the Divisional Court (Wilson, Swinton JJ., Nordheimer J. dissenting) dismissed the application for judicial review of the HRTO Decision.
Divisional Court Decision, Appeal Book, Tab 6
5. Phipps’ human rights application alleged that Constable Shaw discriminated against him on the basis of race and colour when Shaw stopped and questioned Phipps, an African-Canadian, while Phipps was delivering mail for Canada Post in the affluent Bridle Path neighbourhood in Toronto, on March 9, 2005.
HRTODecision, para. 3, Appeal Book, Tab 7
Application under subs. 53(3) of the Human Rights Code, Appeal Book, Tab 9
6. The HRTO found that Constable Shaw discriminated against Phipps in the provision of police services on the basis of colour, contrary to the Human Rights Code. The HRTO made the following factual findings:
- Phipps, a Canada Post employee, was delivering mail in the affluent Bridle Path neighbourhood in Toronto on March 9, 2005 as a relief letter carrier. He was wearing the Canada Post issue uniform, carried a mail bag and delivered mail and flyers. [at para. 7]
- Phipps did not deliver mail and flyers to every house on his route that day. He did stop at one particular house to speak to the owner to apologize for mis-delivering some mail the previous day. [at para. 7]
- While performing his usual delivery activities, Phipps was stopped by Constable Shaw, a police officer with the Toronto Police Service, who was patrolling the neighbourhood in his cruiser, with a new recruit, Constable Diane Noto. Phipps was asked to produce identification and showed Shaw his driver’s licence and Canada Post identification. Constable Noto checked Phipps’ identification against the police computer in the cruiser which revealed nothing. [at paras. 8, 12]
- Phipps continued to perform his delivery duties. Phipps spoke with a number of white construction workers in the neighbourhood who advised him they had not been questioned by Shaw. A white male delivering water in the neighbourhood was not stopped or questioned by the police. Phipps met up with another white letter carrier in the area, who advised Phipps that Shaw had questioned him about letter carriers in the Bridle Path area. [at para. 15]
- Shaw and Noto were assigned to patrol the Bridle Path area with information that phone lines had been cut in the area by possible suspects described as “Male, White and Eastern European, who were using a vehicle”. [at para 8]
- While patrolling, Shaw “immediately” noticed Phipps while turning onto a particular street. Shortly thereafter Shaw could discern that Phipps was a letter carrier. Shaw claims that he found it unusual that Phipps was not the usual letter carrier, that he did not deliver mail to every house, that he crossed back and forth across the street and that he stopped at a house to speak to the homeowner but he did not deliver any mail. [at paras. 9, 22]
- After stopping Phipps, speaking with him and confirming his identification, Shaw questioned another letter carrier in the area – a white male – about other carriers in the area. [at para. 13]
HRTO Decision, Appeal Book, Tab 7
7. The HRTO concluded that Phipps’ colour was a factor in Shaw’s suspicion of Phipps and his decision to stop and question him and in the subsequent inquiries made regarding Phipps. In reaching this conclusion the Tribunal was mindful of the social context of the nature and phenomenon of racial profiling and analyzed the evidence in that context. The HRTO noted as follows:
 In this case, as in many cases alleging racial discrimination, there is no direct evidence that race was a factor in the officer’s decision to take the actions that he did. As a result, the issue of whether the officer’s actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the following well-established principles applicable in circumstantial evidence cases.
 In my view, the above chronology, as described by the respondent Shaw is more consistent with a finding that the applicant’s skin colour played a role in his actions than the applicant’s alleged unusual activity.
 I conclude that the applicant’s colour was a factor in Constable Shaw’s surveillance, decision to stop, and subsequent inquiries about the applicant on March 9, 2005 and that he breached the applicant’s right to equal treatment without discrimination on the basis of colour with respect to services, contrary to sections 1 and 9 of the Code.
HRTO Decision, at paras. 4; 17; 24; 34, Appeal Book Tab 7
PART II – ISSUES AND LAW
A. The standard of review – reasonableness – calls for the utmost deference.
8. All members of the Divisional Court panel agreed that the standard of review for HRTO decisions is reasonableness. Leave to appeal has not been sought on the issue of the standard of review. When the appropriate standard of review is reasonableness, important consequences follow.
9. An "unreasonable decision" means,
one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
Canada (Director of Investigation and Research) v. Southam Inc.,  1 S.C.R. 748 at para. 56
10. In applying the reasonableness standard generally, a reviewing court should not at any point ask itself what it considers the "correct" decision to have been. This deferential approach gives effect to the legislature's intention that a tribunal should have the primary responsibility of deciding the issues according to its own process and for its own reasons.
Law Society of New Brunswick v. Ryan,  1 S.C.R. 247 at para. 50
11. A decision will satisfy the reasonableness standard if it is supported by a tenable explanation, even if this explanation is not one that the reviewing court finds compelling. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision; that is, do they stand up to a somewhat probing examination.
Ryan, supra at para. 55
12. In reviewing questions of fact, it is not a court’s role to consider alternate interpretations of the evidence and determine which it accepts as the most reasonable. Rather, a court’s role is to determine whether the Tribunal's interpretation of the evidence is reasonable, i.e., whether it had "some basis in the evidence" for its findings.
Ontario (Human Rights Commission) v. Jeffrey,  O.J. No. 3767 at para. 23 (Div. Ct.)
ADGA Group Consultants Inc. v. Lane (2008), 91 O.R. (3d) 649 at para. 76 (Div. Ct.)
13. Deference recognizes and respects the legislative choice to leave some matters in the hands of administrative decision-makers, and presumes the decision under review to be reasonable unless the applicant shows otherwise.
Dunsmuir, supra at paras. 47-49, 146
Ryan, supra at paras. 48 and 51
14. Judicial review on a standard of reasonableness recognizes there is no single outcome that must be regarded as the correct one. Rather, there is a range of outcomes that are acceptable and the function of judicial review on a standard of reasonableness is merely to determine whether the decision falls within that range.
Abdoulrab et al. v. Ontario Labour Relations Board et al. (2009), 95 O.R. (3d) 641 at para. 42 (C.A.)
15. The deferential standard of review is applicable to the HRTO’s findings of fact, the inferences the HRTO draws from the facts, and its determination as to whether there has been discrimination; all areas in which the HRTO is acting within the core of its expertise.
Knoll North America Corp. v. Adams and Ontario (Human Rights Tribunal),  O.J. No. 5611 at paras. 42 and 48 (Div. Ct.)
B. The elements of a prima facie case in human rights proceedings.
16. The starting point for a discussion of a prima facie case is the Supreme Court’s decision in O’Malley, where the Court provided a definition of discrimination, set out the elements of a discrimination claim, and described the shifting evidentiary burdens on the parties. A prima facie case was described as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent”.
Ontario (Human Rights Commission) v. Simpsons Sears Ltd.,  2 S.C.R. 536 at para. 28
17. The above oft-cited passage from O’Malley is more a description of the effect of a prima facie case, rather than of its elements. For example, Ms. O’Malley established her prima facie by showing that she was a member of the Seventh-Day Adventist Church, and as a result could not work on shifts scheduled for Saturdays. Or, if an individual establishes that his disability was a factor in the termination of his employment, he has established a prima facie case of discrimination because of disability. In such cases, establishing a prima facie case shifts the burden to the respondent to establish any available defence, such as undue hardship or justification.
18. In a claim of racial discrimination in the provision of services, establishing a prima facie case shifts the burden to the respondent to provide a rational explanation which is not discriminatory.
19. As noted by the majority of the Divisional Court at paragraph 47, the elements of a prima facie case were set out in Dang as follows. The claimant must show:
- That he or she is a member of a group protected by the Code;
- That she or he was subjected to adverse treatment; and
- That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.
This formulation is similar to Nordheimer J.’s description, at paragraph 139, of the elements of a prima facie case. The claimant must show:
(i) that the complainant belongs to one of the groups that are protected by the Code;
(ii) that the complainant has suffered adverse treatment, and;
(iii) that there is some evidence of a nexus between the prohibited ground and the adverse treatment.
20. The observations of Abella J. in the McGill decision respecting the difference between a distinction and discrimination do not alter the fundamental elements of a prima facie case. A claimant must meet a three-part test:
i) is the claimant a member of a group possessing a characteristic protected under the Code?
ii) did the claimant suffer some adverse treatment?
iii) is it reasonable to infer that the protected characteristic played some role in the adverse treatment?
The test for a prima facie continues to require a nexus between a protected characteristic and the adverse treatment.
Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII) at paras. 96 and 103
21. In the case at bar, there is no dispute about the first two elements. The pivotal question is whether there is some evidence from which the HRTO could draw a reasonable inference that Phipps’ race was a factor in the way in which Shaw dealt with him. There was such evidence; white workers doing their jobs in the area were not stopped or questioned. As noted by the majority of the Divisional Court at paragraph 59:
Mr. Phipps was the only person stopped and questioned in the neighbourhood. He was in uniform doing his job. He was the only black man in the neighbourhood. Several others individuals in the immediate area were not questioned by the police officers including several men doing their job working on three construction sites, and an individual doing his job delivering water. The uncontradicted evidence of Mr. Phipps was that all of these individuals who were not questioned were white.
22. Here, the HRTO member focussed the inquiry on the issue of a nexus; whether there was evidence from which an inference could be drawn that the fact that Phipps is black was a factor in way Shaw treated him. The HRTO wrote as follows:
The issue for me to determine is whether the applicant’s skin colour was a factor in Constable Shaw’s surveillance of, decision to stop and subsequent inquiry about the applicant. [para. 20]
...I find that on a balance of probabilities, the fact that the applicant was an African Canadian in an affluent neighbourhood was a factor, a significant factor, and probably the predominant factor, whether consciously or unconsciously, in Constable Shaw’s actions. [para. 21]
Accordingly, I conclude that it was not unusual behaviour on the applicant’s part that caused Constable Shaw to decide to place the applicant under surveillance but rather the fact that he was an African Canadian male in an affluent neighbourhood. [para. 28]
Accordingly, I conclude that the applicant’s colour was a factor in Constable Shaw’s continued suspicion of the applicant and his decision to stop and question the applicant. [para. 31]
23. The HRTO did not “skip” the third part of the three-part test, nor did it create a presumption of discrimination once the first two elements of the prima facie case were established. Rather, the HRTO addressed the evidence that could support an inference that there was a nexus between Phipps’ race and the way Shaw treated him. The evidence to support such an inference is reflected in the HRTO’s decision. The HRTO noted, at paragraph 15, that white construction workers in the area had not been stopped or questioned, and that a white man delivering water in the area was not questioned.
24. The assertion that this evidence supports an inference that Phipps’ race was a factor in the way that Phipps had been treated by Shaw has been known throughout the HRTO process. Phipps’ Application under subs. 53 (3) of the Code contains the following exchange:
How were you treated differently from others? Mr. Finlay of caucasian descent, was not asked to provide ID. A Caucasian driver delivering water where they 1st stopped me was not asked for ID. Numerous me[n] of caucasian complexion at separate construction sites within metres of where I was harassed were not asked for ID.
Application under subs. 53 (3) of the Code, Appeal Book, Tab 9, p. 105
C. Claims of racial discrimination typically require circumstantial evidence and the drawing of reasonable inferences.
25. Claims of racial discrimination, like allegations of racial profiling, can rarely be proven by direct evidence. The existence and the extent of racial bias are not issues that can be established in the manner normally associated with the proof of adjudicative facts.
R. v. Parks,  O.J. No. 2157 at para. 42 (C.A.)
26. Typically, if racial discrimination is to be proven, it must be done by inference drawn from circumstantial evidence. Where the evidence shows that the circumstances correspond to the phenomenon of racial profiling or racial discrimination, and provide a basis to infer that an officer is not being truthful about why he or she singled out a person for attention, the record can support a finding that racial profiling or racial discrimination occurred. This does not set the bar too low (which could be unfair to officers), or too high (which would make it virtually impossible to prove a race claim).
R. v. Brown (2003), 64 O.R. (3d) 161 at para. 46 (C.A.)
27. Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action. If the evidence supports an inference that race was a factor in the way a claimant was treated, a court or tribunal may draw that inference. It is not mandatory to draw such an inference; that decision is up to the trier of fact who has heard the evidence.
Peart v. Peel Regional Police Services Board,  O.J. No. 4457 at paras. 95, 135 (C.A.)
28. Used this way, circumstantial evidence, from which it can reasonably be inferred that there is a nexus between the claimant’s race and the adverse treatment, serves a necessary function in the analysis of racial discrimination claims. Claims of racial discrimination will not be dismissed simply because there is no direct evidence of a nexus. Used this way, circumstantial evidence can support an inference which does not require direct evidence, and which recognizes the subtle, pervasive and unconscious nature of racism.
Knoll America, supra at para. 48
29. At this stage, the burden of proof remains with the claimant, with the circumstantial evidence simply supporting the inference that a nexus exists; the third element of the prima facie case. The elements of a prima facie case are not changed. A properly informed consideration of the relevant circumstantial evidence, together with a sensitive appreciation of the relevant social context in which claims of racial discrimination must be assessed provides protection against the failure of meritorious claims as a result of the allocation of the burden of proof.
Peart, supra at para. 147
30. From its experience with claims of racial discrimination, the HRTO typically uses the following established principles, identified both in the HRTO Decision and the Divisional Court’s reasons:
- The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor:
- There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent’s actions on the complainant;
- The prohibited ground or grounds need not be the cause of the respondent’s discriminatory conduct; it is sufficient if they are a factor or operative element;
- There will often be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
- Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.
The HRTO also uses the following well-established principles concerning circumstantial evidence:
- Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.
- It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.
- A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.
- There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.
- The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondents.
HRTO Decision, paras. 16, 17, appeal Book, Tab 7
Divisional Court Decision, paras. 76, 77, appeal Book, Tab 6
31. Using circumstantial evidence to support an inference that the third element of the prima facie case is established does not mean that the claimant succeeds at the end of the day. Rather, it simply means that the HRTO legitimately asks the respondent (in this case a police officer) to provide the reason or reasons for the decision to stop and make inquiries of the claimant. The respondent may provide a non-discriminatory explanation. If that explanation is accepted by the HRTO, the claim is dismissed. Here, the HRTO did not accept Shaw’s explanation.
D. The HRTO decision did not create a presumption of discrimination
32. At paragraphs 47 to 58 of their factum, the Appellants assert that the HRTO Decision created a presumption of discrimination. This assertion is based on the Appellants’ mistaken assertion that the HRTO skipped over the third part of the three-part test for a prima facie case of discrimination. This is reflected in paragraph 45 of the Appellants’ factum, where they claim that “there are no facts in evidence that would suggest the required nexus between Mr. Phipps’ race and the adverse treatment”.
33. The Appellants’ submission misconstrues the evidence and the establishment of a prima facie case before the HRTO. The only black man working in the area was stopped. White men working in the area were not. Those were facts in evidence. Those were facts from which it could reasonably be inferred that Phipps was stopped because he is black.
34. The HRTO Decision, when properly analyzed, does not create a presumption of discrimination. The burden of proving a prima facie case rests with the claimant. The three-part test is applied. Circumstantial evidence is used to draw an inference in the third part of the test.
E. Discrimination, particularly racial discrimination, can be subconscious.
35. The Appellants suggest, at paragraph 87 of their factum, that the fact that racial discrimination can be subconscious should not be used as a substitute for evidence. Here, the HRTO did not use the fact that racial discrimination can be subconscious as a substitute for evidence. It used it as a backdrop against which to assess the evidence before it, a useful and a necessary exercise given the subtle, pervasive and unconscious nature of racism.
36. Racism operates at several levels, including individual, systemic or institutional or societal. Racial discrimination can occur through stereotyping and overt prejudice or in more subconscious, subtle and subversive ways.
Racism and Racial Discrimination (2005), Ontario Human Rights Commission
37. The above observation by the Commission in its 2005 policy is consistent with a long line of jurisprudence, in which the following statements are found:
The attitude underlying racial profiling is one that may be consciously or unconsciously held. That is, the police officer need not be an overt racist. His or her conduct may be based on subconscious racial stereotyping. (Brown, supra at para. 8)
Racial profiling may be the product of overt, subconscious, or institutional racial bias. Am individual officer engaged in racial profiling may be subjectively unaware that he or she is doing so. Indeed, racial profiling does not necessarily reflect any racial bias. It may reflect the officer’s legitimate perception of the reality of the world in which the officer operates. (Peart, supra at para. 93)
38. Here, the HRTO was sensitive to the nature of racial discrimination, as reflected in its comments at paragraphs 18 and 19 of its decision. The HRTO used its understanding of the phenomenon of racial discrimination in order to assess the evidence before it. That evidence persuaded the HRTO that an inference could be drawn that Phipps’ race was a factor in the way that he was treated by Shaw.
39. At paragraph 86, the Appellants’ refer to the observation of Nordheimer J. in the Divisional Court reasons, and the concern that a person who is found to have discriminated unconsciously is punished in the absence of voluntary action. This case does not raise a question of “punishment” for involuntary actions. The assertion that the HRTO Decision runs contrary to the principle that “our system of justice is predicated on the notion that only those who act voluntarily should be punished” is contrary to established human rights principles. Intention to discriminate is irrelevant. Human rights legislation is about relief for victims, not about punishment for discriminators. As the Supreme Court noted in O’Malley:
The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination.
... an intention to discriminate is not a necessary element of the discrimination generally forbidden in Canadian human rights legislation.
The proof of intent, a necessary requirement in our approach to criminal and punitive legislation, should not be a governing factor in construing human rights legislation aimed at the elimination of discrimination. It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof.
O’Malley v. Simpsons-Sears Ltd.,  2 S.C.R. 536 at paras. 12 and 14
PART IV – ORDER REQUESTED
40. The intervenor Ontario Human Rights Commission submits that this appeal should be dismissed. Pursuant to the terms of the Order of O’Connor A.C.J.O., the Commission shall not seek costs, nor shall costs be awarded against it.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Anthony D. Griffin
Counsel, Ontario Human Rights Commission
Counsel, Ontario Human Rights Commission