Divisional Court sets aside decision of labour arbitrator who incorrectly applied test for prima facie discrimination

Divisional Court sets aside decision of labour arbitrator who incorrectly applied test for prima facie discrimination

In Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of the Attorney General), 2024 ONSC 1555, the Divisional Court set aside a decision of a labour arbitrator on a grievance alleging anti-Black bias in a workplace investigation. The grievance related to an altercation between the grievor, a Black woman, and a white co-worker after they bumped into each other in a corridor. The grievor believed the co-worker intentionally shoved her, which the co-worker insisted the contact was accidental.

Arbitration Result:

After the grievor reported the incident to her manager, the employer appointed a white male lawyer to conduct an investigation. The investigator found the incident did not occur as the grievor had described it and concluded that she had manufactured the incident in order to seek monetary compensation.

The arbitrator concluded the investigation was procedurally flawed but found that the grievor had not established on a balance of probabilities that race was a factor in the results of the investigation.

Divisional Court Ruling

The Divisional Court found the arbitrator had made a series of errors, supporting the conclusion that he had misapprehended (or misunderstood) the proper test for prima facie discrimination:

• The arbitrator applied the incorrect legal standard in concluding that the grievor had failed to establish a prima facie case of discrimination because they had not shown that race was the “dominant possibility”. The prohibited ground need not be the only or predominant reason for the adverse treatment. Instead, it only need be a factor in the decision-making process.

• The arbitrator conflated two stages of the analytical framework, which requires first determining whether the grievor had established a prima facie case of discrimination and then considering the evidential burden on the employer to provide a non-discriminatory explanation for that differential treatment.

• The arbitrator incorrectly stated that the grievor required actual evidence of words or conduct to establish the investigator was unconsciously biased against her. Direct evidence is not required, and discrimination will often be proven by circumstantial evidence and inference.

• The arbitrator, in insisting that there must be actual evidence to support a finding of unconscious bias, discounted the expert evidence provided by the grievor on the indicia of unconscious bias that aligned with a number of findings he made.

• When the employer failed to provide any evidence to support the investigator’s actions, the arbitrator reached his own conclusions based solely on speculation as to the investigator’s motives. In addition to making findings unsupported by any evidence, the arbitrator effectively relieved the employer from rebutting the grievor’s evidence and placed the burden of disproving the existence of possible non-discriminatory explanations on the grievor.

The Court remitted the matter back to the arbitrator, to be determined again in accordance with the guidance provided by the Court.

Prima facie

A Latin term meaning based on the first impression or accepted as correct until proved otherwise. A prima facie case may be understood as enough evidence from an applicant to establish a presumptive case unless disproved or rebutted. For example, at the HRTO, an application must make out a prima facie case of discrimination before a respondent is legally obliged to present any evidence to defend against the discrimination.