The Ontario human rights case of Islam v. Big Inc., 2013 HRTO 2009 garnered recent media attention due to the cumulatively large damage award made to the applicants. However, this case also provides a useful reminder of the evidentiary burden on the parties to prove or defend a case of discrimination before the Human Rights Tribunal of Ontario.
This case involved discrimination against three employees at Le Papillion restaurant in Toronto. Islam began as three separate human rights applications that were eventually consolidated into one case as each separate matter involved similar allegations against the same respondent.
The applicants in Islam were Mr. Malik (head Chef); Mr. Hossain (sous chef); and Mr. Islam (cook). All three alleged discrimination in employment on the basis of a number of prohibited grounds including race, colour, ancestry, place of origin, ethnic origin and creed. The applicants also alleged harassment, poisoned work environment, failure to investigate their complaints of discrimination, and reprisals.
These allegations stemmed from a number of workplace incidents including a requirement to eat pork contrary to the applicants’ religious dietary restrictions; an English only rule in the kitchen; threats to replace the applicants with white staff; and the applicants’ discriminatory terminations.
In Islam the Tribunal ultimately found for the applicants and awarded damages for lost wages, general damages for an infringement of their right to be free from discrimination, and concluded that the employer failed to investigate the employees’ complaints of discrimination. The total damage award was just shy of $100,000 not including income deductions and interest.
In this case, the Tribunal remarked that “[t]here is little uncontested or objectively verifiable evidence available to guide me in making findings of fact.” (para 123)
This is often the case with human rights matters. There is usually no direct evidence of discrimination; for example, someone expressing a racial slur against a colleague in an email. Often the applicant and respondent will disagree on the facts and there will not be any witnesses or other direct evidence objectively proving either party’s case. In such circumstances, the Tribunal is often called upon to decide whether the applicant was subjected to discrimination based on circumstantial evidence or inferences, which can be tricky.
Per the Tribunal in Islam:
Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence, which may include evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 (“McDougall”). (para 114)
In Islam, the Tribunal also commented on the difference between witness testimony that is credible and reliable. Credibility goes to whether the witness can be trusted to be telling the truth; whereas reliability goes to whether what the witness is testifying to actually happened. As the Tribunal member put it, it is the difference between veracity and accuracy. When assessing the credibility and reliability of a witness the Tribunal considers the following factors among others:
Islam is an interesting example of a human rights case where the Tribunal reached a finding of discrimination despite conflicting evidence proffered by the parties.