Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Fitting honour for rights code's 50th bill would add the words "gender identity" and "gender expression" to the existing list of prohibited grounds for discrimination under the code. It was nice to see MPPs beef up protections as people around the O gendered people under the code passed third reading. The 50th anniversary in a fitting way last week. On Wednesday, a private member' province were celebrating 50 years of the code. While critics have certainly raised valid concerns about some aspects of the code, par- ticularly as it relates to some decisions at the Human Rights Tribunal of Ontario, there' inclusive place by rooting out many obvious forms of discrimination. At the same time, it' of discrimination that they need protection from. There can be no justification, then, for the difficulties they face. In the meantime, the anniversary and the legal change highlight s no doubt it has made the province a better and more s clear that transgendered people face many forms a few other lingering issues related to human rights. At the federal level, for example, efforts to add a similar provision to the Ontario one to the Canadian Human Rights Act have f loundered. A previ- ous proposal almost made it into law during the previous session of Parliament, but a second attempt by NDP MP Randall Garrison has yet to make it that far. As Garrison noted in introducing bill C-279: "This is a popula- tion that faces constant discrimination everywhere they go and in everything they do. " fact is a difficult task that in one recent case has appeared to involve the imposition of a reverse onus on respondents. To put the issue differently, there I n order to make a finding of racial discrimination, complainants must establish that their race was a factor in an adverse treatment. But proving that must be some connection between the complainant' complained of. Since direct evidence of an intention to discriminate is a rare occurrence, finders of fact often resort to circumstantial evidence and infer- ences. Of course, the respondent may then attempt to provide a rational expla- nation to disprove the connection, but the ultimate issue is whether an infer- ence of discrimination is more probable than the explanation proffered. The two recent cases before Ontario s race and the conduct involved a police constable, Michael Shaw, who stopped a black letter carrier in an affluent Toronto neighbourhood. Shaw was patrolling the area due to first case, Shaw v. Phipps, Law Times ing forward with the protections at the federal level as well. On the other side of the issue, critics have raised a number of concerns with Ontario's human rights Garrison's words are clear justification for mov- system in general, including the notion that it makes it too easy for disgruntled employees to launch proceedings against their employers. It can be very inexpensive, of course, for people to initiate cases at the tribunal often with free legal assistance, a situation that exposes employers to frivolous claims of discrimination. While there are mechanisms to dismiss those claims and there are obvious pitfalls in doing that too easily, there' reason to have a discussion on potential changes to address the issue. Hopefully, the ongoing review of the Ontario human rights system provides some answers when it reports this summer. It' s nevertheless good s clear, then, that while we have lots to cel- ebrate as the code turns 50, there's more work to do to refine the human rights system. — Glenn Kauth Discrimination cases wade dangerously into reversing onus reports of break and enters in the neighbourhood by white and eastern European males. The saw an individual engaged in unusual activity at the end of the block. Importantly, Shaw testified he couldn't discern the gender or skin colour of the individual when he first noted the unusual activity. Shaw, being familiar with officer testified he Social Justice to the Ontario Divisional Court and the Ontario Court of Appeal were unsuccess- ful despite what appears to have been the application of a reverse onus on Shaw. Contrast that result with Appeals by the officer courts that reached opposite results illustrate the difficulty in attempting to analyze discrimination and racism. The the area, knew its regular mail carrier and saw the individual knock on a door and speak with the person who answered without deliver- ing any mail. He also observed the indi- vidual going to homes without cars in the driveway. Shaw became suspicious. Shaw then approached the individual and asked to see his identification. Despite corroborating evidence from an assistant officer who testified about Shaw' the skin colour of the individual, the Ontario Human Rights Tribunal reject- ed his explanation and concluded he had engaged in discriminatory conduct by stopping the carrier. s suspicions arising before he knew Alan Shanoff law students prior to entering the lawyers' lounge and library. The three men, dressed in suits, were lawyers and a student acting on a case that day. The librarian testified that she "routinely" requested identifica- tion from individuals she and other staff didn't recognize regardless of skin colour. The tribunal concluded that race was a factor in the decision to approach the men and ordered the librarian to pay $2,000 to each of the three for the violation of their human rights and "for injury to their dig- nity, feelings, and self-respect." But on appeal, the Ontario Divisional Court concluded the tribunal's decision Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . Kendyl Sebesta Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . . . . . . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . . . . . . . . . . . . . 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Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com the second case, Peel Law Association v. Pieters, that involved a librarian at the courthouse in Brampton, Ont., stopping and asking three black men if they were lawyers or wasn't reasonable and that there was no basis to conclude the librarian had engaged in differential treatment based on the colour of the three men. Most impor- tantly, the court found the tribunal had reversed the burden of proof and placed the librarian in the position of having to prove a negative, "namely, that her conduct in the performance of her routine duties was not motivated by race and colour. But isn't that precisely what the tribunal " had done in the Shaw case? I'm prepared to accept that both the officer and librarian acted somewhat pre- cipitously and hurt the feelings of the men they questioned. But both were ful- filling what they reasonably saw as their responsibilities and I'm not prepared to accept that either is a racist or guilty of a violation of our Human Rights Code. I refuse to employ a reverse onus and am willing to provide the benefit of the doubt before labelling someone a racist. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com ntario legislators acknowledged the Human Rights Code's s bill to protect trans- COMMENT June 18, 2012 • Law Times

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