In May 2008, Selwyn Pieters, Brian Noble, and their articling student were sitting with several other lawyers in the lawyers’ lounge in a Brampton court when a court librarian asked just the three men, two of whom wore their hair in dreadlocks, if she could see their IDs to verify they were lawyers.
According to the Peel Law Association’s policy, only lawyers and law students are allowed to sit in the lawyers’ lounge.
On Thursday, the appeal court said the Divisional Court erred on several grounds, including its application of “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 court said.
Yesterday’s decision re-affirms virtually all findings of the Human Rights Tribunal of Ontario, which ruled in 2010 that the court officer’s actions were discriminatory and that the respondents failed to provide a credible explanation as to why the appellants were questioned. The tribunal vice chairman had also said the manner in which the librarian, Melissa Firth, approached the three men was “aggressive and demanding.”
The tribunal’s ruling was dismissed at the Divisional Court, which found insufficient evidence to prove racism was the factor that led Firth to demand that the lawyers show their IDs.
In its argument, 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 rearranged the furniture in the room earlier and another employee had told Firth those people were sitting where the men were seated, the association said. It could have also been because Pieters, Noble, and the articling student were sitting near the door and she simply happened to approach them first because they were closest to her as she walked in.
But the Court of Appeal said the tribunal did consider these 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 at no point during the incident did Firth give this as the reason why she was asking for identifications.
Instead, when the lawyers asked Firth why she was singling them out, she had said it was because she recognized everyone else in the room, a statement that was later found to be false. In fact, the ruling states, some of the other people in the lawyers’ lounge had never been there before and one of them was not a lawyer.
In a key message, the appeal court said a positive test of discrimination does not 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, Pieters told Legal Feeds via e-mail.
“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 professional 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 disappointed in the outcome and we’re reviewing the decision,” he tells Legal Feeds.
Although a decision to appeal to the Supreme Court of Canada has not been made, that step remains an option, adds Freiman.