There have been many instances in which the courts have curtailed the excesses of human rights tribunals across the country. This happened again today, in the case of two black lawyers who claimed they were discriminated against by a legal librarian in 2008.

The incident occurred in a courthouse lounge that was restricted to lawyers only – paralegals were not permitted. Melissa Firth, a librarian/administrator for the Peel Law Association, approached the two lawyers and asked for their identification, since she did not recognize them and thought they might be paralegals. They immediately accused her of racial profiling, and a verbal altercation ensued.

The Ontario Human Rights Tribunal sided with the complainants in a 20-page decision dated December, 2010. In it, the Tribunal quoted the five-point standard for findings of racial discrimination referred to in the Phipps decision, and has been discussed before on this website. This standard elevates circumstantial evidence, and the feelings of the complainant, to the level of unvarnished truth, and gives the Tribunal member ample tools with which to dismiss any argument that the respondent could possibly offer in their defence.

In the end, the Tribunal cited the fact that there were other people in the room that were unknown to Ms. Firth as enough evidence to convict her of racial profiling, and fined her $4000. This requires a string of assumptions that would never hold up in a court of law.

And it didn’t hold up under the scrutiny of a judge. Keep in mind that the courts in a judicial review are very limited as to how they can overturn a decision, so there must be an egregious error of law for this to happen.

“A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination,” says the judgment, overturning a Human Rights Tribunal finding in the case…

The three-judge panel found that tribunal vice-chairman Eric Whist unfairly reversed the onus of proof from the complainant to the respondent, and “placed [the librarian] in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race and colour.” It also criticized the tribunal’s “misconceived” comparison of the librarian’s conduct to racial profiling by police.

Even more surprising, the courts ordered the original complainants, who have made several previous racial discrimination claims, to pay $20,000 of legal costs to the Peel Law Association.

The lead complainant, Selwyn Pieters, is considering an appeal. “If the judges had a critical, race-based lens, they would have seen it from the perspective of an African-Canadian,” he said. Essentially, Mr. Pieters is asking the courts to put aside their impartiality and see things solely from one party’s perspective. Human rights tribunals usually go along with that, but, thankfully, our courts do not.