Law Times

Law Times • June 24, 2013 Page 5 NEWS Peel Law Association v. Pieters Lawyers vindicated in courthouse discrimination case BY YAMRI TADDESE Law Times T wo black lawyers and an articling student asked to show their identification at a Brampton, Ont., courthouse several years ago were subject to discrimination based on their race, the Ontario Court of Appeal has ruled. The finding set aside a 2011 Divisional Court's decision to the contrary. The case dates back to May 2008 when Selwyn Pieters, Brian Noble, and their articling student were sitting with several other lawyers in the lawyers' lounge at a Brampton courthouse. A court librarian asked just the three men, two of whom wore their hair in dreadlocks, if she could see their identification to verify they were lawyers. According to the Peel Law Association's policy, only lawyers and law students can sit in the lawyers' lounge. On June 13, the appeal court said the Divisional Court had erred on several grounds, including its application of a "stricter test of discrimination." "This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination," the appeal court said. The decision reaffirms virtually all of the findings of the Human Rights Tribunal of Ontario. In 2010, it ruled the court officer's actions were discriminatory and that the respondents had failed to provide a credible explanation for questioning the appellants. The tribunal vice chairman had also said the manner in which the librarian, Melissa Firth, approached the three men was "aggressive and demanding." The Divisional Court dismissed the tribunal's ruling. It found insufficient evidence to prove racism was the factor that led Firth to ask the lawyers to show their identification. In its argument, the Peel Law Association gave a number of reasons why Firth could have approached the three men. It could have been because there were people who had rearranged the furniture in the room earlier and another employee had told Firth those people were sitting where the men had sat down, the association said. It could have also have been because Pieters, Noble, and the articling student were sitting near the door and Firth simply happened to approach them first because they were closest to her as she walked in. But the Court of Appeal found the tribunal had considered those arguments and was right to reject them. "Improperly moving furniture and entering the lounge without entitlement are two different matters. Lawyers entitled to use the lounge can improperly move furniture," the appeal court said, noting that at no point during the incident did Firth give that as the reason why she was asking for identification. Instead, when the lawyers asked Firth why she was singling them out, she said it was because she recognized everyone else in the room, a statement later found to be false. In fact, according to the ruling, some of the other people in the lawyers' lounge had never been there before and one of them wasn't a lawyer. In a key message, the appeal court said a positive test of discrimination doesn't require ruling out all other potential reasons for a suspiciously racist act. The appeal court's decision is "significant and important" as one of the first racial profiling findings by the court that doesn't involve law enforcement agents, said Pieters following the ruling. "Whilst racial profiling in the provision of goods, services, and facilities is widespread and pervasive, there is a dearth of racial profiling litigation in Canada," he said. "The Court of Appeal decision in this case is important to the emerging jurisprudence on racial profiling from which lawyers and other black professionals are not immune." The Peel Law Association is "disappointed" with the appeal court's decision, says Mark Freiman, the lawyer representing Firth and the association. "All I can say right now is that our client is 'Whilst racial profiling in the provision of goods, ser- disappointed in the outcome and we're reviewvices, and facilities is widespread and pervasive, there ing the decision," he says. is a dearth of racial profiling litigation in Canada,' says An appeal to the Supreme Court remains an Selwyn Pieters. option, adds Freiman. LT KEYNOTE SPEAKERS: LAURIE PAWLITZA, Treasurer Emeritus, Law Society of Upper Canada See you July 8th AND JORDAN FURLONG, Lawyer, Speaker, Consultant TO DEBATE "Should I Stay or Should I Go" Law Times will not publish in print next week. We will return on July 8, 2013. 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