Ontario Divisional Court Says Labour Arbitrator Failed to Apply Proper Test for Discrimination
According to Judge Ryan Bell (“Bell J”) an arbitrator incorrectly dismissed a request that there be a finding of discrimination, which was made by the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”). Bell J overturned that decision because the arbitrator failed to apply the correct legal test for discrimination. An arbitration is a private court proceeding where the arbitrator is the judge.
Background
A Black woman (the “Grievor”) alleged that her colleague (“Ms. X”) had intentionally shoved her at work. The next day, the Grievor reported it to her manager; then, she left the workplace and did not return.
The employer appointed an investigator—a white, male lawyer in a management position in another department—to look into the Grievor’s complaint.
The Investigation
The Grievor gave the investigator a written statement describing what happened and requested financial compensation.
The investigator interviewed several witnesses. Two of the witnesses heard the Grievor say, “Excuse me, excuse me”, after the incident. One witness heard Ms. X reply, “You were in my way”. A third witness could not recall what was said but told the investigator just that the Grievor’s tone was “confrontational”, which the draft of the report incorrectly restated as “threatening”.
The investigator decided that Ms. X was more believable than the Grievor, because she admitted certain things, like not getting out of the way, which could make her seem more at fault. Meanwhile, the investigator described the Grievor’s account as “calculated to lead to the requested relief, including compensation”, and that she did not admit to doing anything wrong, such as raising her voice.
The Arbitration
AMAPCEO – the union that represents these employees – filed a grievance against the employer, for a few reasons, including that:
- The investigation was “unfair, biased and flawed”, which violated the employer’s policies and the law; and
- The investigation discriminated against the Grievor, and it was marked by anti-Black racism, because the investigator’s conclusions and the investigation itself had tell-tale signs of “anti-Black stereotypes, prejudice, and implicit bias”.
The arbitrator agreed with AMAPCEO on many points, including that the investigation was biased and flawed, and that the investigator seemed to work backward from the conclusion that the Grievor’s claim was going to be unsuccessful.
The arbitrator decided that:
- the investigator did not pay enough attention to the Grievor’s written statement;
- the investigator’s conclusion that the Grievor’s complaint was made up for compensation was “particularly harsh” and “not based on any actual evidence”;
- the investigator “was not tasked with investigating the motives behind the Grievor’s complaint and yet for some reason took it up on himself to draw such conclusions”; and
- the fact that the investigator did not ask the Grievor to respond to his theory “was improper and deeply unfair”.
Despite this, the arbitrator said that the report was not discriminatory or tainted by anti-Black racism and/or unconscious bias.
AMAPCEO asked the Court to review the arbitrator’s decision, arguing that the arbitrator applied the wrong test for discrimination.
The Court Decision
In his reasons, Bell J determined that the arbitrator improperly applied the test for discrimination. The correct test in this situation would be to consider whether being Black was a factor in the way that the Grievor was treated. If it was a factor, then the burden shifts to the other party (in this case, the employer) to show that there were non-discriminatory reasons for the treatment. If, in response, the workplace cannot show that the treatment was based on non-discriminatory reasons, then there should be a finding of discrimination.
AMAPCEO provided the Court with a report from Dr. Kawakami, an expert in implicit/unconscious bias, which noted that “White perceivers may be more likely to attend to and interpret behavior by Blacks as criminal” and “it is more plausible that a White perceiver will identify with a White compared to a Black person as vulnerable to crimes and as a victim of violence than vice versa”.
The arbitrator incorrectly stated that the test for discrimination requires actual evidence to suggest bias and appeared to ignore evidence of discrimination/unconscious bias.
Takeaways
When people allege they have been the victims of discrimination in the workplace or elsewhere, the law in Ontario does not require the evidence that they provide to be direct evidence to prove discrimination. The law recognizes the reality, which is that it is very unlikely that someone will say, explicitly, “I am being discriminatory due to the colour of your skin”. Instead, the Court allows discrimination to be proven by inference, such as in the case we discuss in this article.