Like many of you I enjoyed a little time off over the Holiday Season. That time seems to inevitably include the binge watching of Netflix offerings and this year the show that was all the rage was: Making a Murderer. While I am not going to wade into the criminal aspects of the case presented (no spoilers here) the show did turn my mind towards the levels of evidence and the challenges presented to any investigator. I will present the concepts of ‘prima facie’ and the ‘balance of probabilities’ below in the context of a real case and related to the landscape we find ourselves in, the Canadian labour market and tackling Harassment Investigations in the workplace. I have investigated a number of cases recently where the understanding of this concept was key.

What is prima facie?

Let’s first turn to the internet for a quick definition. “In legal practice the term generally is used to describe: the presentation of sufficient evidence by a claimant to support the legal claim (a prima facie case).” In more than a few of the cases that I investigate, research or hear about when I conduct training, it seems this concept is misunderstood or not considered at all. Simply put prima facie means that it is not sufficient for a Complainant to simply feel that they are being harassed or that discrimination is happening to them without any evidence to support that conclusion. The presentation of sufficient evidence is key. While I do not wish to minimize what is happening in broken relationships in the workplace, for the actions to rise to the level of a breach of relevant policy, they must at least rise above the level of prima facie. This means the presentation of sufficient evidence to support the claim.

To demonstrate prima facie discrimination, complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact; and that the protected characteristic was a factor in the adverse impact. Once the prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.

The Supreme Court of Canada confirmed that in order to satisfy the “balance of probabilities” standard of proof evidence must be “sufficiently clear, convincing and cogent.”

Case in point:

An applicant testified at an Arbitration that he applied for a managerial position, was interviewed and was not successful in the competition. He said that he had been disadvantaged in the competition because he had not been given the opportunity to act in the position prior to the hiring process. The applicant testified that the decision for the hiring was not made by the panel, but rather was made by a man that he had filed a previous complaint about. The applicant testified that the decision not to hire him had no legitimate basis, but rather was a form of discrimination. The applicant self identified as being Black and of West Indian origin.

In his Application he alleges that during the period of five years he was subject to racial discrimination in twelve job competitions and on numerous occasions while he was carrying out the duties of his job.

Decision: The Application was dismissed in its entirety. The Arbitrator did not find that the applicant established that the respondent’s actions were discriminatory. The Arbitrator was satisfied that the respondent provided credible non-discriminatory explanations for its actions.

The employer was able to provide evidence that demonstrated the hiring decision was based on a solid practice, and in fact the applicant rated 10 out of the 13 people screened in for an interview, based on the average score received from multiple scorers involved in the interview.

The applicant submitted that the interview panel was unfair, as there was no Human Resources representative on the panel and that the scores were so similar. He contended there must have been collusion and that it must have been tainted by discriminatory considerations.

The Arbitrator stated that even if there had been less than optimal interview practices, that the absence of a perfect process did not mean that the applicant was treated differently based on his race, colour or place of origin. The Arbitrator ruled that the applicant had not established a plausible link between his race, colour or place of origin and having not been selected.

The applicant testified regarding another incident during which, he stated a manager spoke to him in a demeaning manner and bullied him. The evidence of a witness in the room contradicted this allegation, as did subsequent email evidence reviewed.

Of particular note the Arbitrator pointed out that the applicant did not provide details as to how the manager treated him beyond the generalizations that he felt demeaned and bullied. He did not explain why he believed the manager’s actions were related to his race, colour and place of origin except to essentially state that because he was bullied and demeaned, it was reasonable to conclude it was somehow discriminatory. The Arbitrator ruled that the applicant failed to meet his onus to show that on a balance of probabilities anything that happened in this meeting was discriminatory.

The applicant went on sick leave for a time and later returned. He testified that when he returned two managers came into his office on separate occasions and complimented him on how well he was doing since his return. The applicant testified that he thought these comments were disingenuous and he thought the managers were making fun of him since they had smirks on their faces. He testified that he knew from his overall experience that this was a further example of being singled out, of being treated unfairly because of his race. This further demonstrates the ill-will that can be created between individuals in the workplace. A smile is seen as a smirk, a comment on a job well done is translated as sarcasm. This element of the case was dismissed for similar reasons.

There were other elements to this case, but the essence is presented here. Complaints require evidence.

In closing I would like to wish you all a great 2016, filled with all the best. May your investigations conclude well and swiftly and may every witness be pleasant and co-operative! We have workshops scheduled for 2016 and I hope to see you at one of them!

Dylan Hill