Discrimination Claim Falters for Lack of Evidence

Written Daniel Standing LL.B., Editor, First Reference Inc.

A claim of discrimination is a serious thing, and the allegation won’t pass muster without any evidence to back it up. If there’s no evidence, a claim cannot succeed. The Saskatchewan Court of Queen’s Bench turfed a claim in these circumstances in 2022 SKQB 188.

Background

The complainant was an Aboriginal man working as a heavy equipment operator for a construction company. He made a human rights complaint on the basis of race and ancestry in which he alleged his supervisor made racial comments to him, calling him a “stupid Indian” and, on one occasion, when they encountered an abandoned mattress in a field, asked him if that was where “you Aboriginals” slept.

Over time, the employee had many issues with how the supervisor wanted the work to be done and felt the supervisor wasn’t properly addressing the safety concerns the employee brought forward.

He eventually brought his concerns to the attention of the labour advisor for the area in a long Email. When the labour advisor asked the employee for more details on his allegations, the employee couldn’t provide any texts, Emails, letters or phone call recordings to back his story up. He explained at the hearing that he didn’t provide this information because it was too personal to him. He said he would have provided details at a meeting, but the meeting never happened.

After he was laid off due to a shortage of work, he filed a human rights complaint.

The parties’ positions were straightforward: The employee said the employer failed to protect him against the supervisor’s discriminatory comments. The supervisor denied making any statements of the sort whatsoever.

It was a classic he says/he says situation.

What the court decided

The court cited the three-part test for assessing human rights complaints: the complainant must establish there is a protected ground, there is an adverse impact, and the protected characteristic is a factor in the adverse impact.

There was no dispute about the complainant being an Aboriginal person, satisfying the first part of the test. The problem was, at the second step, there was no evidence of an adverse impact. The court did a thorough credibility analysis and concluded the labour advisor had asked the complainant twice if the supervisor had made comments to him (the complainant) about race or ancestry, and the complainant answered in the negative both times. He had also declined being transferred to another crew.

Key takeaways

He said, she said, doesn’t cut it. A complainant has to bring forward evidence that is sufficient to prove their case. Just saying discrimination happened isn’t going to pass muster.

This valuable reminder of the importance of preserving potential evidence pertains to employers, too. Knowing what to save and what not to can be a challenge at the best of times, but erring on the side of caution and preserving significant texts, emails and social media activity could save an employer significant headaches down the road.