Ruby Ross v. Canadian Corps of Commissioners, 2009 HRTO 34

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruby Ross

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Canadian Corps of Commissioners

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: January 12, 2009

Citation: 2009 HRTO 34

Indexed as: Ross v. Canadian Corps of Commissionaires

1This Interim Decision addresses the respondent’s request for particulars and to strike portions of the Commission’s hearing brief.

1The complainant alleges that the respondent discriminated against her contrary to ss. 5 and 8 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) in the course of her employment for wearing her hair in a traditional Aboriginal manner. The grounds of alleged discrimination are ancestry, ethnic origin, creed and race. The Commission referred the complaint to the Tribunal on February 14, 2008. The Commission declined to refer the complaint against certain individuals and that portion of the complaint alleging reprisal.

The request for particulars

2The complainant states that she is an Aboriginal person and that the way in which she wears her hair is connected with her ancestry and her creed. The Commission relies upon the Native Spirituality Guide of the Royal Canadian Mounted Police (the “RCMP”), and the Native Spirituality Summary prepared by the Department of National Defence, which discuss the wearing of long and braided hair and its connection to the sacred and to identity “as a member of a particular First Nation”.

3The respondent notes that the RCMP document indicates that “the various spiritual beliefs and sacred items and ceremonies portrayed in this guide may vary according to different tribal groups across Canada.” It therefore seeks particulars of “the specific Aboriginal ethnic group to which the Complainant belongs”.

4It is not obvious that the requested particulars are required in the circumstances of this case. Ancestry as a ground of discrimination is not defined in the Code and has rarely been addressed in human rights jurisprudence. One of the few attempts at definition is made in Cousens v Canadian Nurses’ Association (1980), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365:

The term “ancestry” is here determined to mean family descent. In other words, one’s ancestry must be determined through the lineage of one’s parents through their parents, and so on. (at p. D/367).

5Here the complainant is claiming both direct and constructive discrimination on the ground of ancestry, specified as Aboriginal ancestry. In presenting a complaint of discrimination on the ground of ancestry in these circumstances, the Commission must be prepared to establish at the hearing the bona fides of the complainant’s assertions concerning ancestry; in this case the complainant’s assertion that she is an Aboriginal person. The Commission must further establish the nexus between the wearing of the hairstyle at issue and one or more of the grounds of discrimination noted in the complaint. In presenting this case, the Commission may contemplate leading evidence of the complainant’s ancestral connection with a specific Aboriginal community as part of its case, or it may not. Whether establishing Aboriginal ancestry generally rather than in connection with a specific Aboriginal community is sufficient to establish a breach of the Code in the circumstances is a matter of law for the Tribunal to decide at the hearing.

6In these circumstances, if the Commission intends to present evidence of the complainant’s ancestral connection to any specific Aboriginal community, it should identify that community or communities so as to permit the respondent to know and respond to that factual issue.

The request to strike paragraphs

7The respondent seeks an order striking paragraphs 4 through 12, 14 and 15 of the Commission’s hearing brief. The test for whether a fact is properly included in a party’s hearing brief is whether the fact alleged is potentially relevant to the matters at issue at the hearing.

8The Commission submits that these paragraphs are “relevant to the subject-matter of the complaint, and forms part of the continuum of events that led to Ms. Ross’ dismissal”.

9Paragraphs 4b, 5, 10, 11, 12, 14 and 15 refer solely to events that allegedly took place in work placements other than the location where the events that make up the referred complaint are alleged to have occurred. I agree they are not potentially relevant to facts or issues in this case and will be struck.

10While the allegations in paragraphs 4, 6, 7, 8 and 9 relate to the other work locations, I find that they are potentially relevant to the respondent’s knowledge or acceptance of the complainant’s Aboriginal ancestry, and to the nature of relations between the complainant and one of the respondent’s witnesses.

ORDER

11For all of the foregoing reasons, the Tribunal makes the following Order:

a) Paragraphs 4b, 5, 10, 11, 12, 14 and 15 of the Commission’s hearing brief are struck;

b) If the Commission intends to present evidence of the complainant’s ancestral connection to any specific Aboriginal community or communities, it is required to identify the communities; and

c) The Commission shall serve and file an amended hearing brief that adds any further information required by this decision, and deletes the paragraphs that have been struck, by no later than January 23, 2008.

12I am not seized of this matter.