Prima facie case of discrimination
The phrase ‘prima facie case of discrimination’ is often used in human rights cases. The Supreme Court of Canada has described the test for such a case as follows:
The claimant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the claimant’s favour in the absence of an answer from the respondent–employer.[55]
Forms of discrimination
Discrimination can take many forms. It can occur when a service provider adopts a rule that, on its face, discriminates against persons on the basis of age.
Discrimination can also take place through another person or other means.
Rules, policies, procedures, requirements, eligibility criteria or qualifications may appear neutral but may nonetheless amount to constructive, or “adverse effect” discrimination.
Bona fide and reasonable requirements or qualifications (BFORs or BFOQs)
Where the claimant makes out a prima facie case of discrimination because a standard or requirement has had an adverse impact based on a prohibited ground of discrimination, the respondent may avoid liability by establishing that the standard or requirement in question is a ‘BFOR’ or ‘BFOQ’.
The Supreme Court of Canada has held in that in such cases a three-step test should be adopted to assess the standard or requirement in question. In the context of an employment case, the Court described the test as follows:
- The employer must show the standard is adopted for a purpose rationally connected to the performance of the job
- The employer must establish it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose
- The employer must show that the standard is reasonably necessary to the accomplishment of that purpose. To demonstrate this, the employer must show that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.[56]
Undue hardship
The duty to accommodate exists up to the point of undue hardship. It is the OHRC's position that the Code prescribes only three considerations in assessing whether an accommodation would cause an undue hardship:
Cost: Both the Code and the courts have set the cost standard as a high one. Costs will amount to an undue hardship if they are quantifiable, shown to be related to the accommodation, and so substantial that they would alter the essential nature of the enterprise, or so significant that they would substantially affect its viability.
Outside Sources of Funding: Outside sources of funding may be available to alleviate accommodation costs. Organizations should avail themselves of such resources in order to meet their duty to accommodate and must do so before claiming undue hardship.
Health and Safety Risks: Whether a health and safety risk is sufficient to constitute an undue hardship must be evaluated using the three-step test described in this policy. The nature, probability, severity and scope of the risk must be determined based on objective, cogent evidence and not on assumptions or impressionistic evidence. It is also necessary to consider the fact that, in most things, perfect safety is not possible and that a reasonable level of safety is the goal.
[55] O.H.R.C. and O’Malley v. Simpsons-Sears. Ltd. [1985] 2 S.C.R. 526 at 558. There is current debate as to whether the approach in O'Malley is still appropriate in human rights cases in light of the more recent approach to discrimination cases set out by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), supra, note 50. Nevertheless, an approach that first asks whether the claimant has made out a "prima facie case" continues to be used by many human right tribunals.
[56] Supra, note 14