Victims of racial discrimination have long been doubly victimized: first, by the alleged discriminator, and then, by a human rights process that required they prove what illicit thoughts motivated the discriminator.  An almost impossible task.

In two recent, landmark decisions, the Ontario Court of Appeal ruled that the Human Rights Tribunal of Ontario can assume the existence of “subtle unconscious” racism, where the facts of a case support this inference.  In doing so, the Court of Appeal recognized the reality of “unintentional” or “subconscious” discrimination, which results from unconsciously held beliefs, biases and prejudices, and which is notoriously hard to prove from an applicant’s perspective.  Now, in cases of racial discrimination, if an applicant makes a case suggesting the respondent acted on an unconscious racial bias, the alleged discriminator will be called upon to prove that race was not a factor in the adverse treatment of the applicant (and, rather, that a justifiable, non-discriminatory reason motivated the conduct).

The Tribunal has applied a similar test in disability discrimination cases for years.  Now, it appears racial discrimination cases can be argued on the same level playing field. Watch for success rates in race discrimination cases to go up and covert racism to decline.

Click the links to review the Court of Appeal’s decisions in Shaw v. Phipps, 2012 ONCA 155, and Peel Law Association v. Pieters, 2013 ONCA 396.

Bakerlaw has provided leading representation in discrimination cases before the Human Rights Tribunal of Ontario.  If you have experienced discrimination on any ground, please feel free to contact us to learn more about your rights and remedies.