LITIGATING SYSTEMIC
DISCRIMINATION – LA
DISCRIMINATION SYSTÉMIQUE
DEVANT LES TRIBUNAUX
Béatrice Vizkelety, B.A., B.C.L., LL.M.
Introduction

WHY LITIGATE SYSTEMIC DISCRIMINATION ?
o

Widespread criticism and scepticism
MULTIPLE STRATEGIES (INCLUDING LITIGATION)REQUIRED TO
ELIMINATE DISCRIMINATORY BARRIERS AND PRACTICES
Gaz Métro
Commission des droits de la personne et des droits de la jeunesse et al. c.
Gaz métropolitain inc., 2008 QCTDP 24 (Rivet, J.), conf’d for the most part by
Quebec Court of Appeal, 2011 QCCA 1201 ( Forget, Rochon, Dufresne, J.C.A.)

Under-representation of women in a male-dominated blue collar work positions and segregated
environment ; women 5 % of maintenance workers when the available applicant pool was closer
to 24 %.

Analysis of the hiring system , selection process and tools (if and how various components of the
system contributed to under-representation.)
 Job requirements (incl. indirect discrimination of permit requirement)
 Interview (purpose unclear, discriminatory questions, experience narrowly construed,
unstructured, subjective approach fertile ground for discrimination)
 Written test (Highly selective leading to low success rate; Element of Bennett Test - found
elsewhere to discriminate against women)
 Practical test (Exemptions for men, discretionary, differential treatment & failure to take into
account different physical characteristics of women)
 Medical examination (at ultimate stage of process – after numerous attempts – eliminated
on the basis of ….pregnancy )

Culture of discrimination
Definition of Systemic Discrimination
Definition of systemic discrimination (English translation):
Hence, the Tribunal believes it is now appropriate to define systemic
discrimination as the cumulative effects of disproportionate exclusion resulting
from the combined impact of attitudes marked by often unconscious biases and
stereotypes, and policies and practices generally adopted without taking into
consideration the characteristics of the members of groups contemplated by the
prohibition of discrimination. (36)
Also, see par. 40, 67
Positive Features
DEFINITION OF SYSTEMIC
o Gaz Métro: «Classic case» of discrimination in the workplace
o Also see, Tanisma c. Montréal (Ville de) 2013 QCCS 2479, June 4, 2014
(Peacock, J.)
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OTHER CONTEXTS ?

SYSTEMIC REMEDIES
o Mandatory order to develop and implement a supervised affirmative action
programme
o In Tanisma v. Citiy of Montreal, mandatory order with a systemic
component: (City ordered to ensure that all management positions are
clearly and publicly posted appropriately for access both internally, and
where appropriate externally, to ensure the widest exposure to potential
candidates;)

(Existing employment equity programmes - raise issues of MONITORING and
ACCOUNTABILITY )
Potvin no.1
Commission des droits de la personne et des droits de la jeunesse c
Commission scolaire des Phares, 2004 CanLII 46172 (QC TDP)
Child with Downs Syndrome and moderate to severe intellectual disability – whether
school board justified in placing child in special education class and not adequately
considering integrated education. TDP found discrimination based on disability
Commission scolaire des Phares c. Commission des droits de la personne et
des droits de la jeunesse, [2006] R.J.Q. 378 (C.A.), conf’ing in part TDP decision
Court’s order (translation):
 That School Board conduct a individualized assessment to establish his needs as
well as his learning and social aptitudes, by adapting the evaluation and classification
standards in a manner that would take his disability into account.
 That Board develop an action plan based on all reasonable forms of accommodation
that would allow the child to be integrated in a regular class close to his home;
 Lastly, that the Board determine on this basis, whether integration is in the child’s
best interest.
Potvin no. 2- Systemic approach
Québec (Comm. des droits de la personne et des droits de la jeunesse) c.
Phares, Comm. scolaire (No. 2) (2009), CHRR Doc. 09-2834, 2009 QCTDP 19
Continued refusal to integrate Joël in a regular class bet. 2006 and 2008 – Second
application based – this time - on a systemic approach.
Quebec Human Rights Tribunal findings:
 Practically none of the students with intellectual disabilities were integrated into
regular classes especially at the high school level (admittedly, small numbers)
 Little or no training provided for teachers with respect to integration of students with
moderate to severe learning disabilities – part of an «organizational culture» contrary
to the Quebec government’s policy on Integration (1999).
 Regular classes organized in a way which did not favour integration. In other words,
system favoured placement of students with mental disabilities in separate
specialized classes.
TDP:
It was not so much the interests of the child that determined the placement as the fact that
ordinary classes were not organized in a manner that made integration feasible.(509)
Potvin no. 2 - systemic remedies
Remedies with systemic components
Considering the systemic problems and in addition to individual remedies, the Tribunal
ordered the School Board to:

Modify its policy on services to students with learning disabilities clearly stating that
accommodation in a regular class must be considered first, with necessary accommodation
measures and reorganization of adapted services in order to take into account the modifications
to its policy.

Provide training on principles governing school integration to teachers and other staff members
by experts in the field of integrated education.

Establish a committee responsible for the implementation of measures leading to the successful
integration in regular classes.
Reassess Joël’s classification, and that of other students with disabilities without discrimination,
based on their needs and best interest.
(Orders including deadlines and supervision by Human Rights Commission.)

Potvin no. 2 – Court of appeal
Phares, Comm. scolaire c. Québec (Comm. des droits de la personne et des
droits de la jeunesse) (No 3) 75 C.H.R.R. D/80, 2012 QCCA 988
C.A.Q. in Potvin no. 2
 Dismissed the case finding that the claimants had not shown that the School Board's
decision was unreasonable (par.123).
Possible explanations:
 Systemic approach not deemed appropriate ? Analytical framework proposed by
CAQ in Potvin no. 1 not a straightjacket (par. 131) - systemic approach based on
process replaced by a «reasonableness» standard ».

Deferential attitude towards school board (a public body) – Court’s response to
«creative» corrective measures ordered by first tribunal (par. 192).

ideological differences ? Court’s apparent reservations about integrated schooling
for children with mental disabilities : « Enfin, la preuve a révélé que l'intégration en
classe ordinaire devient plus difficile à mesure que les matières enseignées
deviennent plus abstraites.» (par. 178)
Moore
Moore v. North Vancouver School Dist. No. 44 (No. 2) (2005), 54 C.H.R.R.
D/245, 2005 BCHRT 580
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
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Special services for child with dyslexia denied. Failure to provide the child with access to a
meaningful education.
The B.C. Human Rights Tribunal examined the two allegations of discrimination, one related to
the individual case and the second filed against the government (Ministry of Education) on the
grounds of under-funding and significant budget cuts.
Cuts led to the closure of a centre (DIAGNOSTIC CENTRE (DC1)) which provided intensive
services and individualized assistance to students with severe learning disabilities to help
develop reading skills.
Goal of a systemic analysis:

[840] … the goal of a systemic analysis in this case is to review all of the evidence about the
education system to examine the way in which it operates, as a system, to ensure that it is
accessible to SLD students in a meaningful way. If that evidence discloses that there are
systemic barriers, through Ministry policies or actions, that do not facilitate access, then a finding
of systemic discrimination should follow.
Moore - findings
Summary of findings
The District discriminated against Jeffrey inter alia by :
 not following their own recommendation that he attend the DC1 and
 not ensuring that, following the DC1 closure, other sufficiently intense and effective interventions
were in place to replace it. (903)
The District also discriminated against all of its SLD students by:
 closing the DC1 without ensuring that other sufficiently intensive interventions were available
thereafter; not ensuring that there was a range of services for SLD students adequate to their
needs; and disproportionately cutting core services for SLD students.
The Ministry discriminated inter alia by :
 establishing and maintaining a cap on funding of a relevant programme and thus underfunding the
actual incidence of the students subject to it, including the SLD category;
 underfunding the District through not implementing the recommendations of a study until after the
District experienced a financial crisis that resulted in significant cuts to the services provided to
SLD students; and
 by focussing its monitoring only on spending and fiscal concerns and failing to ensure that early
intervention and a range of services for SLD students was mandatory. (870)
Moore & Systemic Remedies
systemic remedies and orders (In addition to individual compensation)
THAT the District, within one year of this decision:
(i) establish mechanisms for determining that its delivery of services to SLD students are appropriate
and meet the stated goals of the School Act, the Special Needs Student Order, and the 1995
Manual;
(ii) ensure that it has in place an early intervention program so that SLD students can be identified
early and appropriate intensive remediation services provided; and
(iii) ensure that it has in place a range of services to meet the needs of its SLD students.
THAT the Ministry, within one year of this decision:
(i) make available funding for SLD students at actual incidence levels;
(ii) establish mechanisms for determining that the support and accommodation services provided to
SLD students in the Province are appropriate and meet the stated goals of the School Act and the
Special Needs Student Order;
(iii) ensure that all districts have in place early intervention programs so that SLD students can be
identified early and appropriate intensive remediation services provided; and
(iv) ensure that all school districts have in place a range of services to meet the needs of SLD
students.
The Tribunal will remain seized of this matter to ensure that its remedial orders are appropriately
implemented. Par. 1024-1026
Moore – SCC (Abella, j.)
Moore v. British Columbia (Education), 2012 SCC 61
Tribunal’s conclusions regarding discrimination by the District School Board
confirmed but those against the Ministry dismissed – Evidence about the
provincial funding regime «too remote» to establish discrimination against
claimant (par. 65).

Prima facie case of discrimination made out (that the remediation was far from
adequate to give Jeffrey the education to which he was entitled, fully supported
by the evidence.) (par. 41 and 48)

But, Court also notes the following elements concerning the School District :


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Absence of needs-based analysis before closure of centre (43)
Failure to consult experts prior to closure (44)
Failure to have plan in place for upcoming school year addressing the needs of SLD
students in the absence of the centre (44)
District’s motivation in closing centre exclusively financial – but failure to consider
financial alternatives undermines the district’s argument that it had no economic choice
: to decide that it had no other choice, it had at least to consider what those other
choices were. (46 and 52)
Moore on (systemic) remedies
REMEDIES
 While a remedy for an individual complainant (confirmed) can have a ‘systemic’
impact, the remedy must flow from the claim:
But the remedy must flow from the claim. In this case, the claim was made on behalf of Jeffrey,
and the evidence giving concrete support to the claim all centred on him. While the Tribunal was
certainly entitled to consider systemic evidence in order to determine whether Jeffrey had suffered
discrimination, it was unnecessary for it to hold an extensive inquiry into the precise format of the
provincial funding mechanism or the entire provincial administration of special education in order
to determine whether Jeffrey was discriminated against. The Tribunal, with great respect, is an
adjudicator of the particular claim that is before it, not a Royal Commission. (64)

Order regarding implementation of mechanisms essentially an order to comply with
Human Rights Code ---to that extent «redundant» (65)

Finally, no need for tribunal to remain seized of the matter - student has since
graduated from high school and «it goes without saying that if the District is to avoid
similar claims […] it will ensure that it provides a range of services for special needs
students in accordance with the school act and related policies.» (66)
Questions raised by Moore
QUESTIONS:
 Is such an order redundant ?

Can we continue to assume that compliance will occur without specific
measures to avoid the recurrence of discrimination; without specific measures
to counteract past practices, an organizational culture, attitudes, conscious or
unconscious stereotypes (as in Bombardier), etc. that fail to take into account
the rights and needs of minorities and other protected groups ?

Is the purpose merely to avoid similar claims or to ensure future compliance ?