Legal Word of the Day: “Discrimination”

Image: raynevandunem

Image: raynevandunem

Discrimination — The Ontario Human Rights Code does not define discrimination. A working definition, based on interpretation and decisions, is: Differential treatment based on a personal characteristic which has an adverse impact on an individual or group.

Someone who brings a human rights complaint bears the onus of proving a prima facie case of discrimination. To establish that a prohibited ground was a factor in alleged adverse treatment, the complainant must demonstrate some connection between the ground and the alleged discriminatory conduct.

The prima facie elements have developed through case law as:

    • A distinction or differential treatment;
    • Arbitrariness based on a prohibited ground;
    • A disadvantage; and
    • Causation — a nexus, or link between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.

Related Decisions:

Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII)
In this recent appeal to the Ontario Court of Appeal of a Divisional Court decision, the court affirmed that intent is not relevant to an HRTO discrimination claim. Race and colour were found to be factors in a librarian’s decision to ask the Applicants for identification.

Shaw v. Phipps, 2010 ONSC 3884 (CanLII)
What happens when a black letter carrier is assigned to an affluent neighbourhood?

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