Knoll North America Corp. v. Adams, 2010 ONSC 3005

Knoll North America Corp. v. Adams et al. [Indexed as: Knoll North America Corp. v. Adams]

104 O.R. (3d) 297

2010 ONSC 3005

Ontario Superior Court of Justice,

Divisional Court,

Jennings, Lederman and Sachs JJ.

December 13, 2010

Administrative law -- Procedural fairness -- Human Rights Tribunal not breaching audi alteram partem principle of natural justice by relying on one of its own prior decisions that synthesized accepted understandings concerning anti-black racism without giving party opportunity to address that decision.

Human rights -- Discrimination -- Race -- Employer requiring black employee to take anger management counselling as condition of his continued employment -- Human Rights Tribunal finding that decision was influenced by stereotype that black men have propensity towards violence and that employer discriminated against employee on basis of race contrary to s. 5(1) of Human Rights Code -- Tribunal's decision rationally supported -- Decision not patently unreasonable -- Human Rights Code, R.S.O. 1990, c. H.19, s. 5(1).

The complainant was loud and rude in the course of a dispute with his supervisor at work. The employer suspended the complainant for three days and required him to attend anger management counselling as a condition of his continued employment. The complainant accepted the suspension but denied that he had a problem with anger management and refused to agree to seek counselling. The Human Rights Tribunal (the "Tribunal") found that the requirement that the complainant receive anger management counselling was influenced by the stereotype that black men have a propensity towards violence and that the employer had discriminated against the complainant on the basis of race contrary to s. 5(1) of the Human Rights Code. The employer brought an application for judicial review of that decision.

Held, the application should be dismissed.

Per Sachs J. (Lederman J. concurring): Section 45.8 of the Code provides that the Tribunal's decisions are final and binding, subject only to judicial review on the standard of patent unreasonableness. The Tribunal's decision had to be respected unless it was not rationally supported. [page298]

The Tribunal did not breach the audi alteram partem principle of natural justice by relying on one of its own prior decisions without giving the employer an opportunity to address that decision. The prior decision merely set out well-accepted facts concerning anti-black racism and the stereotyping of black men in relation to acts of violence. To require the Tribunal to go back to a party before citing one of its own authorities that synthesized the accepted understandings concerning anti-black racism would severely hinder the Tribunal's ability to fulfill its mandate.

The Tribunal's finding that the complainant's conduct was not in and of itself indicative of a propensity to violence was not irrational, especially since it was accepted that this was the first time that the complainant had ever displayed any behaviour of that kind in his almost nine years of service. The decision to refer an employee to anger management counselling was a highly discretionary one, and it was a discretion that the employer rarely exercised. Confronted with the employer's rarely exercised discretionary decision to refer an employee to anger management counselling based on an assumption by the employer that did not, in the Tribunal's view, objectively arise from the evidence, the Tribunal was entitled to draw an inference that race and negative stereotyping played a role in the decision. It was an inference that recognized the subtle, pervasive and unconscious nature of racism, and it was an inference that directly engaged the Tribunal's specialized expertise. The Tribunal's decision was rationally supportable.

Per Jennings J. (dissenting): The Tribunal's decision was patently unreasonable. The Tribunal did not review the evidence before it to determine whether the referral to anger management counselling was influenced by stereotypical thinking about black men and violence. Nor was there any underpinning to support the inference that discrimination existed.

APPLICATION for judicial review of a decision of the Human Rights Tribunal.

Cases referred toFuric v. Knoll North America Corp., [2010] O.H.R.T.D. No. 1334, 2010 HRTO 1334 (H.R.T.), consd Other cases referred to Adams v. Knoll North America Corp., [2009] O.H.R.T.D. No. 1356, 2009 HRTO 1381, 67 C.H.R.R. D/447 (H.R.T.); Clifford v. Ontario Municipal Employees Retirement System (2009), 98 O.R. (3d) 210, [2009] O.J. No. 3900, 2009 ONCA 670, 76 C.C.P.B. 184, 312 D.L.R. (4th) 70, 256 O.A.C. 354, 93 Admin. L.R. (4th) 131, 188 L.A.C. (4th) 97; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; IWA, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, [1990] S.C.J. No. 20, 68 D.L.R. (4th) 524, 105 N.R. 161, J.E. 90-472, 38 O.A.C. 321, 42 Admin. L.R. 1, 90 CLLC Â14,007 at 12041; London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859, 167 O.A.C. 120, 34 M.P.L.R. (3d) 1, 119 A.C.W.S. (3d) 664 (C.A.); Ontario (Commissioner, Provincial Police) v. MacDonald, [2009] O.J. No. 4834, 2009 ONCA 805, 255 O.A.C. 376, 3 Admin L.R. (5th) 278; Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457, 217 O.A.C. 269, 43 C.R. (6th) 175, 39 M.V.R. (5th) 123, 152 A.C.W.S. (3d) 825 (C.A.); R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161, [2003] O.J. No. 1251, 170 O.A.C. 131, 173 C.C.C. (3d) 23, 9 C.R. (6th) 240, 105 C.R.R. (2d) 132, 36 M.V.R. (4th) 1, 57 W.C.B. (2d) 108 (C.A.); R. v. Koh (1998), 1998 6117 (ON CA), 42 O.R. (3d) 668, [1998] O.J. No. 5425, 116 O.A.C. 244, 131 C.C.C. (3d) 257, 21 C.R. (5th) 188, 40 W.C.B. (2d) 515 (C.A.); R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, [1993] O.J. No. 2157, 65 O.A.C. 122, 84 C.C.C. (3d) 353, 24 C.R. (4th) 81, 21 W.C.B. (2d) 121 (C.A.); [page299] R. v. Spence, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, 2005 SCC 71, 259 D.L.R. (4th) 474, 342 N.R. 126, J.E. 2005-2230, 206 O.A.C. 150, 202 C.C.C. (3d) 1, 33 C.R. (6th) 1, 135 C.R.R. (2d) 318, 67 W.C.B. (2d) 504, EYB 2005-98281; Radek v. Henderson Development Canada Ltd. (No. 3), [2005] B.C.H.R.T.D. No. 302, 2005 BCHRT 302, 52 C.H.R.R. D/430; Sinclair v. London (City), [2008] O.H.R.T.D. No. 46, 2008 HRTO 48, 63 C.H.R.R. D/513 (H.R.T.); Toronto (City) Police Service v. Phipps, [2010] O.J. No. 4283, 2010 ONSC 3884, 325 D.L.R. (4th) 701, 193 A.C.W.S. (3d) 1269 (Div. Ct.) Statutes referred to Human Rights Code, R.S.O. 1990, c. H.19, ss. 5(1) [as am.], 39, 40, 45.8 [as am.], 53(3) Authorities referred to McLachlin, Beverley"Stereotypes: Their Uses and Misuses" (Address to the McGill University Faculty of Law Human Rights Forum, November 25, 1992)

P.A. Neena Gupta, for applicant. Margaret Leighton and Reema Khawja, for respondent Ontario (Human Rights Tribunal). Colin Adams, on own behalf.

SACHS J. (LEDERMAN J. concurring): -- Overview

[1] The applicant, Knoll North America Corp. ("Knoll"), seeks judicial review of the Case Resolution Conference decision dated September 2, 2009 of the Human Rights Tribunal of Ontario (the "Tribunal"), in which the Tribunal found that Knoll had discriminated against the respondent, Colin Adams, when Knoll terminated Mr. Adams from his employment because he refused to attend anger management counselling.

[2] The Tribunal found that Knoll's requirement that Mr. Adams receive anger management counselling was influenced by a discriminatory stereotype concerning black men, namely, that black men have a propensity towards violence. As such, the Tribunal found that Knoll had discriminated against Mr. Adams with respect to his employment on the basis of race in violation of s. 5(1) of Human Right Code, R.S.O. 1990, c. H.19, as amended (the "Code").

[3] In a later decision on penalty, the Tribunal awarded Mr. Adams $15,000 for damages arising from the infringement of his rights under the Code and $10,517.68 for the wages and benefits that he would have received had he not been terminated from his employment.

[4] Knoll does not seek judicial review of the decision concerning penalty. However, Knoll submits that the decision on liability [page300] should be set aside for two reasons. First, Knoll argues that the Tribunal breached the principles of procedural fairness when it relied on a previous decision of the Tribunal for some general facts in relation to racism, anti-black racism and stereotyping of black males without giving Knoll the opportunity to address the decision in question. Second, Knoll submits that the decision should be set aside as either unreasonable or patently unreasonable because the finding of discrimination was made without any evidence to support it and was inconsistent with other evidence that the Tribunal did accept.

[5] For the reasons that follow, I would dismiss the application. With respect to the issue of procedural fairness, I find that the Tribunal did nothing more than refer to its previous decision that synthesized the judicial and Tribunal understanding of the social context applicable to racial stereotyping of black men. There is nothing procedurally unfair about doing this in a case where all parties knew that the key issue before the Tribunal was whether Mr. Adams experienced differential treatment on the basis of race and whether Knoll's response to Mr. Adams' behaviour was influenced by a discriminatory stereotype concerning black men.

[6] With respect to the merits of the decision, I find that the standard of review applicable to the Tribunal's decision is the one mandated by the legislature, namely, patent unreasonableness. However, the content of that standard means that the decision of the Tribunal must be respected unless it is not rationally supported. Applying this standard, I find that the decision in question was not patently unreasonable. Factual Background

[7] Colin Adams worked at Knoll from July 19, 1999 to March 3, 2008 as a machine operator in its Toronto furniture manufacturing facility. On February 12, 2008, Mr. Adams was working the night shift. At 3:00 a.m., he had a dispute with his shift supervisor. The Tribunal did not believe Mr. Adams' testimony concerning the dispute and accepted the version of events put forward by the supervisor.

[8] According to the version of events accepted by the Tribunal, the dispute began when Mr. Adams called his supervisor over to his work station. His supervisor had issued a written work order to Mr. Adams with respect to some material. The work order stated "we have to re-work the material". Mr. Adams questioned his supervisor about why he had used the pronoun "we" in the work order since Mr. Adams had not made the initial mistake. [page301] Mr. Adams further told his supervisor that he would not rework the material.

[9] A few minutes later, Mr. Adams motioned to his supervisor to come back to his work station. Mr. Adams showed him some material that had no work order. His supervisor asked him to do the work with the work order. After completing the work, Mr. Adams beckoned his supervisor over again and recommenced complaining about the use of the pronoun "we". Mr. Adams was visibly angry. Mr. Adams raised his voice and when his supervisor asked him to calm down, Mr. Adams responded"Who are you and why do I have to listen to you?" His supervisor told Mr. Adams to go to his office. The supervisor went to his office and called security. When Mr. Adams arrived at his supervisor's office, he leaned against the doorway to the office and moved the zipper on his pants up and down several times. The supervisor asked security to tell Mr. Adams to leave the building.

[10] The supervisor testified that he felt disrespected and threatened by Mr. Adams' behaviour. Mr. Adams had no history of similar behaviour at Knoll.

[11] Knoll investigated the incident and on February 20, 2008, Knoll suspended Mr. Adams for three days. On the same day, Knoll wrote Mr. Adams and told him that Knoll wanted him to return to work, but that before he did so he had to agree in writing to seek anger management counselling through the company's Employee Assistance Program ("EAP").

[12] The evidence before the Tribunal was that in the five years preceding the hearing, 12 people had been sent to EAP, ten of whom were sent for anger management counselling. The race of the ten individuals who had been referred for anger management counselling was five black men, two Asian men, one Asian woman, one Caucasian woman and one Caucasian man. Knoll had a workforce of 1,100 employees.

[13] Knoll has a written policy concerning workplace violence. According to that policy"Violence, threats (regardless of intent), harassment, intimidation and other disruptive behaviour will not be tolerated at Knoll." The policy goes on to talk about the steps that Knoll can take to deal with a person who is involved in workplace violence. These can include suspension and termination. Neither this policy nor any other Knoll policy makes reference to EAP and when it is appropriate to insist on counselling as a condition of continued employment.

[14] Mr. Adams refused to agree to seek the counselling. Mr. Adams told Knoll that his doctor had confirmed that he did not have an anger management problem. Mr. Adams did not [page302] provide Knoll with any written or other confirmation from his doctor to this effect.

[15] Knoll advised Mr. Adams that they considered him a valued employee and wanted him to return to work as soon as possible, but that if he did not agree to the counselling he would be deemed to have resigned his position as of March 3, 2008.

[16] On March 17, 2008, Mr. Adams made a complaint to the Ontario Human Rights Commission (the "Commission"). On October 31, 2008, Mr. Adams exercised his right under s. 53(3) of the Code to abandon his complaint to the Commission and apply to the Tribunal. This procedure was authorized under the transition provisions of the 2008 amendments to the Code.

[17] After the matter was not resolved through mediation, a Case Resolution Conference (i.e., a hearing) was held on June 23 and 24, 2009. The hearing was bifurcated to deal with liability first and then remedy at a later hearing. The Tribunal's Decision

[18] The Tribunal framed the issue as follows (at para. 48, Adams v. Knoll North America Corp., [2009] O.H.R.T.D. No. 1356, 2009 HRTO 1381 (H.R.T.) ("Knoll")):

. . . Knoll required the applicant to obtain anger management counselling in order to prevent a violent incident from occurring in the workplace. The issue before me is whether Knoll's linking of violence and anger was influenced by the belief that Black men have a propensity towards violence and whether this belief exposed the applicant to greater scrutiny. If the applicant establishes this on a balance of probabilities, a prima facie case of discrimination has been established. (Emphasis added)

[19] The Tribunal accepted that the following principles applied to its decision as to whether Knoll's requirement that Mr. Adams undertake anger management counselling as a condition of his employment constituted differential treatment on the basis of race [Knoll, at para. 44]: (a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor. (b) There is no need to establish an intention or motivation to discriminate; the focus of the inquiry is on the effect of the respondent's actions on the complainant; (c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element; (d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and [page303] (e) Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.

[20] The Tribunal referred to an earlier Tribunal decision, Sinclair v. London (City), [2008] O.H.R.T.D. No. 46, 2008 HRTO 48 (H.R.T.), in support of the observation accepted by the Tribunal that race plays a very subtle role in society, influencing the actions of people without them realizing or intending that to be the case. At para. 17 of Sinclair, the Tribunal stated"Racialization affects black men in particular, often without the conscious involvement of those making the decisions, through stereotypes of them as physical, violent, and more likely to be criminal." The Tribunal in Knoll found that because these attributes are ascribed to black men, black men are over-monitored and scrutinized in our society (Knoll, at para. 46).

[21] With respect to the incident that precipitated the referral to EAP, the Tribunal found that while they accepted that the supervisor felt threatened by the incident, the circumstances of the incident itself were insufficient to establish that Mr. Adams had a propensity towards violence. Further, Mr. Adams had been disciplined for the incident by being suspended for three days and had accepted that discipline.

[22] Knoll's human resources manager had testified that the purpose of the referral was preventative, to prevent Knoll's zero tolerance policy towards violence from having to be used. She also testified that she told Mr. Adams that Knoll would use the EAP "to assess whether he had an anger management problem and if he didn't need further treatment, the EAP provider would let the employer know and that would be the end of it". The Tribunal did not accept this latter aspect of the manager's evidence.

[23] Given these findings, the Tribunal concluded as follows, at paras. 50 and 51:

The applicant's conduct on February 12, 2008, when viewed collectively, did not establish a propensity towards violence. It was unprecedented and, on that basis alone, was disconcerting to Knoll. It was open to Knoll to ask for an assessment from the applicant's doctor as to whether he had an anger management problem or even to refer the applicant to the EAP for an assessment. However, to require the applicant to undergo anger management counselling as a condition of his continued employment was an over-reaction in light of his employment history, especially when one considers that he had served a three-day suspension for his misconduct. This finding is supported by the fact that in the last five years, only 10 out of 1,100 employees were required to attend anger management counselling. These statistics show that anger management counselling is rarely required of Knoll employees.

I therefore find on a balance of probabilities that Knoll's conclusion that the applicant could potentially become violent in the workplace, based solely on the isolated incident of February 12, 2008, was influenced by the [page304] discriminatory stereotype that Black men have a propensity towards violence. I find further that Knoll subjected the applicant to a heightened degree of scrutiny by requiring him to attend anger management counselling as a condition of his continued employment. In these circumstances, Knoll contravened section 5 of the Code. Standard of Review

[24] In 2008, the legislature effected a number of fundamental changes to the human rights regime in Ontario. The Commission no longer functions as a gatekeeper, selecting which cases merit adjudication by the Tribunal. Applications alleging discrimination are made directly to the Tribunal. Unless the application falls outside the Tribunal's jurisdiction, the parties are entitled to an opportunity to make oral submissions before the application is finally determined. As part of the changes, the legislature enacted a clause providing that Tribunal decisions are final and binding, subject only to judicial review on the standard of patent unreasonableness. That section reads as follows:

45.8 . . . a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.

[25] In the recently released decision of Toronto (City) Police Service v. Phipps, [2010] O.J. No. 4283, 2010 ONSC 3884 (Div. Ct.), the Divisional Court addressed the question of what the import is of s. 45.8 of the Code, given the reasoning in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, where the Supreme Court of Canada determined that there were only two standards of review: correctness and reasonableness. Further, the Supreme Court's conclusion was based on the finding that "[l]ooking to the either the magnitude or the immediacy of the defect in the tribunal's decision provides no meaningful way in practice of distinguishing between a patently unreasonable and an unreasonable decision" (para. 41). The Supreme Court also held that it would be inconsistent with the rule of law to uphold an irrational decision just because the irrationality of that decision was not clear enough (para. 42).

[26] In Phipps, at paras. 41 and 42, the Divisional Court came to the following conclusion that I find is applicable to the case at bar:

Therefore, reading the words of s. 45.8 of the Code purposively and in light of general principles of administrative law, it would follow that the highest degree of deference is to be accorded to decisions of the Tribunal on judicial review with respect to determinations of fact and the interpretation and application of human rights law, where the Tribunal has a specialized expertise. [page305]

With respect to the present applications for judicial review, a high degree of deference is therefore to be accorded to the Tribunal's determination whether there has been discrimination under the Code and what the appropriate remedy should be, given that these are questions within the specialized expertise of the Tribunal. In other words, the decisions on liability and on remedy must be respected unless they are not rationally supported -- in other words, they are unreasonable (Dunsmuir, para. 42). Procedural Fairness

[27] There is no standard of review analysis applicable to the issue of procedural fairness. If the decision was arrived at in breach of the basic principles of procedural fairness, then it must be set aside (see, for example, London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859, 167 O.A.C. 120 (C.A.); Ontario (Commissioner, Provincial Police) v. MacDonald, [2009] O.J. No. 4834, 2009 ONCA 805; and Clifford v. Ontario Municipal Employees Retirement System (2009), 98 O.R. (3d) 210, [2009] O.J. No. 3900, 2009 ONCA 670).

[28] The essence of the audi alteram partem principle of natural justice is to give the parties a fair opportunity to answer the case against them. Knoll submits that this principle was breached when the Tribunal referenced and relied upon a previous Tribunal decision in reaching its decision without advising Knoll that it was going to do so or giving Knoll an opportunity to make submissions concerning the decision in question. Knoll's argument is focused on the following excerpts from the Tribunal's decision, at paras. 45 and 46:

As this Tribunal noted in Sinclair v. City of London, 2008 HRTO 48, race plays a very subtle role in our society. It can influence many social interactions without the knowledge or the intention of those involved. The effects of anti-Black racism are well recognized in Canadian law and expert evidence, while helpful, is not necessary for them to be considered by the Tribunal.

One of the most significant effects of anti-Black racism is the over-monitoring of Black men because of certain attributes that are prescribed to them. As the Tribunal stated in Sinclair "[r]acialization affects Black men in particular, often without the conscious involvement of those making decisions, through stereotypes of them as physical, violent, and more likely to be criminal" (at para. 17).

[29] As will be discussed in more detail in the next section of these reasons, in making these comments the Tribunal was taking notice of well-accepted facts concerning anti-black racism and the stereotyping of black men in relation to acts of violence. These facts have been accepted and recognized in the jurisprudence on the issue, including jurisprudence from the Supreme Court of Canada. There is nothing inappropriate about the Tribunal citing one of its own authorities that summarizes these [page306] facts -- facts that directly speak to the Tribunal's and the courts' understanding of the social context in which the issue before the Tribunal occurred.

[30] In IWA, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, [1990] S.C.J. No. 20, at paras. 73 and 93, the Supreme Court made it clear that the rules of natural justice are not to be used to discourage specialized administrative bodies from taking advantage of its expertise and the body of jurisprudence that has developed around its area of expertise. Further, the audi alteram partem rule is to be more leniently applied to "legal or policy arguments not raising issues of fact . . . because the parties only have the right to state their case adequately and to answer contrary arguments" (para. 93).

[31] The 2008 amendments to the Code have given the Tribunal more adjudicative responsibility and the mandate to adopt their own practices and procedures to ensure the fair, just and expeditious resolution of human rights applications (ss. 39 and 40 of the Code). To require the Tribunal to go back to a party before citing one of its own authorities that synthesizes the accepted understandings concerning anti-black racism would severely hinder the Tribunal's ability to fulfill its mandate. The exigencies of the Tribunal's decision-making responsibilities simply do not allow for such procedural niceties. The Jurisprudence Concerning Racism and Racial Profiling

[32] In R. v. Koh (1998), 1998 6117 (ON CA), 42 O.R. (3d) 668, [1998] O.J. No. 5425 (C.A.), the Ontario Court of Appeal confirmed that decision-makers may take "judicial notice" of facts which are so notorious that they could not be the subject of dispute between reasonable persons. Widespread racial prejudice as a characteristic of a community may be one of those facts. Furthermore, once a court has made a finding of such prejudice in relation to a particular race, decision makers in subsequent cases may be able to take judicial notice of that fact.

[33] In R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324, [1993] O.J. No. 2157 (C.A.), no evidence was called at trial about the existence of anti-black racism. At the Court of Appeal, the court relied on various reports and studies to find the following (at para. 54):

Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil. [page307]

[34] At para. 60, Parks quotes Justice McLachlin (in "Stereotypes: Their Uses and Misuses" (Address to the McGill University Faculty of Law Human Rights Forum, November 25, 1992), at p. 11) on the role that racial stereotypes can play in decision making of all kinds, including decision making in the employment context:

Racial stereotypes serve a similar purpose to that served by gender stereotypes. We may decide to reject a person's opinion or refuse their application for employment on the basis of race because it saves us the trouble of really analyzing whether we should be accepting the person's point of view or candidature. I am not suggesting that people consciously decide to apply inappropriate racial stereotypes on the ground that they provide easier decisions than rational decision-making. The matter is more complicated, less express than that. In fact, racial or sexual stereotypes are there, in our minds, bred by social conditioning and encouraged by popular culture and media. Sometimes they are embodied in our institutions. We tend to accept them as truths. When faced by a problem, we automatically apply them because it is natural and easy -- much easier than really examining the problem and coming to a rational conclusion by the processes of thought and listening and evaluation.

[35] In para. 61 of Parks, the court makes the observation that bias "shapes the information received to conform with those biases. In doing so, it gives the decision reached, at least in the eyes of the decider, an air of logic and rationality."

[36] In para. 62 of Parks, the court recognizes one of the biases in the form of stereotypes that society holds in relation to blacks: "Anti-black attitudes may connect blacks with crime and acts of violence." This is a judicial recognition of the attitude that the Tribunal took notice of in the decision under review.

[37] In R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, [2005] S.C.J. No. 74, at para. 5, Binnie J., writing for the Supreme Court, stated:

The courts have acknowledged that racial prejudice against visible minorities is so notorious and indisputable that its existence will be admitted without any need of evidence. Judges have simply taken "judicial notice" of racial prejudice as a social fact not capable of reasonable dispute. [Citation omitted]

[38] The issue of racial profiling has also been the subject of judicial commentary. In the criminal context, racial profiling occurs when a police officer uses race, subconsciously or consciously, as an indicator of potential unlawful conduct. In doing so, they draw the conclusion of unlawful conduct partly on the basis of negative stereotyping that attributes a propensity for unlawful conduct to a person because of his or her race (Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457, 217 O.A.C. 269 (C.A.), at para. 90). [page308]

[39] In Peart, supra, and R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161, [2003] O.J. No. 1251 (C.A.), the Ontario Court of Appeal recognized that racial profiling is wrong even when the police conduct could be justified apart from resort to the negative stereotyping based on race. For example, in Brown, the court accepted that the car that the police officer stopped had been speeding; the question remained as to whether the officer stopped the car because the driver was speeding or because the driver was a young black man in an expensive car.

[40] Finally, the courts have recognized that racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the action in question (see Peart, supra, and Brown, supra). Was The Tribunal's Decision Unreasonable?

[41] Knoll submits that the Tribunal's decision is unreasonable because there is no evidence from which the Tribunal could have inferred that Knoll's actions in relation to Mr. Adams were based on race. Further, Knoll submits that having accepted that Mr. Adams' supervisor felt threatened by what Mr. Adams did, the Tribunal acted contrary to that finding when the Tribunal also found that Knoll acted on negative racial stereotyping when it referred Mr. Adams to anger management counselling. Finally, Knoll argues that even if the Tribunal was correct when it found that Knoll overreacted to Mr. Adams' conduct, the Tribunal had no basis for concluding that racism played any part in that overreaction.

[42] Our task as a reviewing court is to decide whether the Tribunal's decision is not rationally supportable. In conducting this task we must keep in mind that in making the findings and drawing the inferences they did, the Tribunal was acting within the core area of its expertise.

[43] As mentioned earlier, because Knoll defended its actions on the grounds that anger management was required to preempt violence, the issue before the Tribunal was whether "Knoll's linking of violence and anger was influenced by the belief that Black men have a propensity towards violence and whether this belief exposed the applicant to greater scrutiny" (Knoll, at para. 48).

[44] First, the Tribunal was faced with a situation where an employer had disciplined a black employee with a three-day suspension for his conduct. The employee had accepted the discipline imposed on him. The Tribunal found that while the supervisor may have felt threatened by the conduct, the conduct was not in and of itself indicative of a propensity to violence. [page309] Given the conduct in question -- rude and loud language, and pulling a pants zipper up and down -- this cannot be said to be an irrational finding, especially since it was accepted that this was the first time that the employee in question had ever displayed any behaviour of this kind in the almost nine years that he had worked at Knoll.

[45] The employer then made the decision that the employee could not return to work unless he attended anger management counselling. The evidence was clear that the employer has no written policy about when and who to refer to EAP counselling. It was also clear that referrals to anger management counselling are rare. Finally, the employer's evidence was that the reason for the referral was preventative, i.e., to prevent the need for the zero tolerance anti-violence policy to be used.

[46] Thus, the Tribunal was faced with a highly discretionary decision by the employer to refer an employee to anger management counselling. Furthermore, it was a discretion that the employer rarely exercised. Implicit in the referral is the assumption that this employee, unlike most of the employer's other employees, needs anger management counselling and cannot return to work unless he agrees to receive it. The Tribunal rejected the employer's evidence that Knoll was simply seeking to assess whether the employee needed anger management counselling. As the Tribunal found, if the employer had simply referred the employee for an assessment to determine whether he needed anger management counselling, that would have been acceptable. However, instead, the employer independently concluded that Mr. Adams required anger management counselling; that without such counselling he posed a risk of violence; and that this risk could require Knoll to use its zero-tolerance anti-violence policy.

[47] We live in a society that is permeated with anti-black racism. It affects every aspect of that racial minority's life, including their employment. One of the negative stereotypes that people have about black men is that they have a propensity towards violence. The Tribunal was confronted with Knoll's highly and rarely exercised discretionary decision to refer an employee to anger management counselling based on Knoll's assumption that did not, in the Tribunal's view, objectively arise from the evidence. The Tribunal drew the inference that race and negative stereotyping played a role in the employer's conclusion that Mr. Adams could not return to work unless he received anger management counselling.

[48] The Tribunal's decision was an inference that it was entitled to draw from the surrounding circumstances. It was an [page310] inference that does not require direct evidence. Furthermore, it was an inference that recognized the subtle, pervasive and unconscious nature of racism. Finally, it was an inference that directly engaged the Tribunal's specialized expertise.

[49] For these reasons, I find that the Tribunal's decision was rationally supportable. In reaching this conclusion, I am conscious of the fact that after the hearing of this application a different tribunal reached a different result than the Tribunal under review in very similar circumstances. More particularly, in Furic v. Knoll North America Corp., [2010] O.H.R.T.D. No. 1334, 2010 HRTO 1334 (H.R.T.), another black Knoll employee complained of discrimination in the workplace when he was terminated for refusing to attend anger management counselling as a condition of his return to work.

[50] In Furic, the Tribunal was dealing with an incident where, if it had not been for the intervention of a team leader, the people involved in the dispute would have come to blows. Thus, the Tribunal treated the incident as one that was "bordering on workplace violence" (Furic, at para. 35). In the case under review, there was no finding by the Tribunal that the conduct in question "bordered on workplace violence" or was objectively threatening in the same way.

[51] However, even accepting this distinction, it is fair to say that the Tribunal in Furic, while it accepted that the company may not have been "justified in seeing the incident as symptomatic of a larger 'anger management' problem on the part of either man that required a referral to the EAP" (para. 34), it did not accept that the applicant had satisfied his burden of demonstrating that his race was a factor in the company's decision. The Tribunal under review, on the other hand, was prepared to draw the inference, on the basis of the evidence before it, that it was satisfied on a balance of probabilities that race did play a factor in the company's decision.

[52] In assessing the impact of these different results on this court's task, it is important to keep at the forefront of our minds what that task is. It is not to decide which decision we agree with or, put slightly differently, to decide what we would have done in the circumstances. The standard of unreasonableness contemplates and accepts that reasonable people can disagree, especially about difficult issues such as racism, which is so often unconscious. In mandating this standard for court intervention, the legislature has made a choice to leave the decisions in question in the hands of people with particular expertise and has told the courts not to intervene with those decisions unless they are irrational. [page311]

[53] For the reasons I have already articulated, the decision under review is rationally supportable. Therefore, I would dismiss the application for judicial review. Mr. Adams was not represented and the Tribunal is not seeking costs. I would make no order as to costs.

JENNINGS J. (dissenting): --

[54] I regret that I am unable to share the conclusion of my colleagues, that the Tribunal's finding that Knoll's decision to refer Mr. Adams to anger management counselling was discriminatory, was not patently unreasonable.

[55] The reasons of Sachs J. accurately and fairly set out the facts giving rise to this application. I agree with her finding that the standard of review is whether the Tribunal's decision was reasonable. I also agree with her finding that the Tribunal did not deny Knoll procedural fairness.

[56] In para. 48 of her reasons, Sachs J. finds that "the Tribunal's decision was an inference that it was entitled to draw from the surrounding circumstances". With respect, I disagree. In my opinion, there was no evidentiary foundation before the Tribunal in the "surrounding circumstances" to permit the Tribunal to draw the inference that it did.

[57] In my opinion, the analysis carried out by the Tribunal, as set out in para. 23 of these reasons, can be reduced to the following: (1) Knoll overreacted to the misconduct of Mr. Adams by requiring him to go to EAP. (2) Mr. Adams is a black man. (3) Ergo, the requirement was discriminatory.

[58] The analysis of the Tribunal and its conclusion was clearly driven by its perception that Knoll overreacted to what the Tribunal found to be Mr. Adam's misconduct. Whether or not the penalty fitted the crime was neither the issue before the Tribunal nor something within its area of expertise.

[59] I found comparison of the reasons in this decision to those of adjudicator S. Liang in Furic v. Knoll North America Corp., [2010] O.H.R.T.D. No. 1334, 2010 HRTO 1334 (H.R.T.), in her decision dated June 10, 2010, to be helpful and persuasive. In Furic, two employees got into an escalating argument that included threats of physical harm. After an investigation, as in this case, both employees were suspended for three days, and again as in this case, both employees were required to attend EAP as a condition of continued employment. Like Mr. Adams in this case, Mr. Furic refused to attend EAP. As with Mr. Adams, [page312] Mr. Furic did not challenge the three-day suspension imposed upon him, nor claim that the imposition of the suspension was discriminatory. His complaint, as in this case, was that Knoll's requirement that he attend EAP as a condition of continued employment was discriminatory. Mr. Furic was black. The record does not show the race of the other employee.

[60] The evidence before the Tribunal in Furic as to Knoll's "zero tolerance" with respect to actual or potential violence was the same as in this case, given by the same human resources manager at Knoll that testified in this case. Mr. Adams testified in support of Mr. Furic's claim of discrimination. Counsel in Furic agreed that the Tribunal could accept the evidence given in this case as to the number and racial composition of Knoll's referrals to EAP since the inception of the policy.

[61] After accepting the principles in Radek v. Henderson Development Canada (Ltd.) (No. 3), [2005] B.C.H.R.T.D. No. 302, 2005 BCHRT 302, 52 C.H.R.R. D/430 (set out in para. 19 of these reasons), and accepting the existence of stereotype that black men are prone to violence and criminal behaviour, the adjudicator continued as follows [at paras. 32, 35-37]:

The existence of the general stereotype does not mean, however, that it was a factor influencing the actions taken by the company following the October 22 incident. The question before me is whether the applicant has shown, on a balance of probabilities, that his race was a factor in the decision to require him to attend anger management counselling. . . . . .

On the other hand, it does appear that the company has taken a strict line on incidents which it perceives as exhibiting or bordering on workplace violence. The Tribunal's role is not to assess whether the company was justified in its reactions to the incident, but whether race played a factor in those reactions. It is possible to disagree with the company's assessment that the employees required a referral to anger management counselling. It may even be viewed as an overreaction, albeit based on the company's history with workplace violence. The task for the Tribunal is not to determine the fairness or the proportionality of the company's response, although an assessment of these may assist in determining whether race may have played a role in the company's decision-making.

In this case, there was evidence of similar incidents involving non-black workers that did not result in the same measure. There was evidence that a number of workers, blacks and others, have been referred to the EAP for anger management counselling. This evidence is not particularly helpful in the absence of other information enabling a comparison of these other incidents with the one before me.

In general, it may be that the company has come to see a referral to anger management counselling as a standard measure in response to incidents that involve actual or potential violence. Whatever may be the merits of its [page313] approach, I have no direct evidence nor can I infer from the evidence before me that decision to require anger management counselling of the applicant was based in whole or part on his race, or any stereotype about black men and anger or violence. (Emphasis added)

[62] In my opinion, the adjudicator in Furic correctly declined to find whether Knoll's decision to refer Mr. Furic to EAP was a fair or proportionate reaction to Furic's misconduct. Rather, the Tribunal reviewed the evidence before it to determine whether the referral was influenced by stereotypical thinking about black men and violence.

[63] I am unable to find any such analysis undertaken by the Tribunal in this case. Nor am I able to find any underpinning to support the inference that discrimination existed. In effect, by determining the labour relations issue of appropriate penalty against Knoll, the Tribunal in this case decided that as Mr. Adams was black, Knoll was required to prove that it did not discriminate. That, in my opinion, is an unacceptable shifting of the onus. Regardless, again in my opinion, a finding without any evidentiary support must be unreasonable and I would have allowed the application and quashed the decision of the Tribunal.

Application dismissed.