By Ernest J. Guiste
Pride Legal Columnist
Pieters v. Peel Law Association 2012 ONSC 1048 adds to increasing evidence tending to call into question the notion or maxim that justice is blind in Ontario. African-Canadians in this province are subjected to a higher incidence of police stops and longer sentences for the same or similar crimes committed by non-African-Canadians, concluded an inquiry commissioned by the Ministry of the Attorney General for Ontario. So, pervasive and common place is the problem of discrimination against African-Canadians in the Ontario justice system that courts are now mandated by jurisprudence to take judicial notice of this reality of discrimination. (See R v. Brown – R v. Spence and others)
There are two ways in which one can interpret the Divisional Court’s ruling in Pieters (supra). Advocates of the conventional wisdom would argue that the Court of Appeal’s reversal of their decision (2013 ONCA 396) affirms that the system works. On the other hand, it could be argued that the thrust of the Divisional Court’s ruling was to rewrite or disregard long established legal authorities and incorporate a tort-type causation requirement in order to establish discrimination and effectively turn back the clock on human rights in Ontario. The plain and simple effect of the Divisional Court’s ruling was that in order to establish a prima facie case one must also establish a “causal nexus” between the discriminatory act and the prohibited ground. This clearly is akin to the proximate cause requirement in negligence. In negligence it is not enough that the plaintiff suffered harm. The plaintiff must also establish that the act or omission of the defendant was the proximate – or “but for” cause.
The Court of Appeal correctly rejected this attempt to change the law and wrote the following on this point: The Court did not indicate from where it derived this test. The term “causal nexus” does not appear in Tranchemontagne, which the Divisional Court cited before setting out this test. The test is not one that human rights tribunals have traditionally applied.  I do not think it acceptable, however, to attach the modifier “causal” to “nexus”. Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court’s requirement of a “causal nexus” or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.”  I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case. This error necessarily affected the Divisional Court’s analysis of whether the evidence could reasonably satisfy the test for discrimination.