Statistical Correlation Not Enough To Sustain A Human Rights Complaint

To establish prima facie discrimination, human rights complainants must show that they are a member of a protected group, experienced adverse treatment, and link the adverse treatment to their membership in a protected group.

In April of 2018, the BC Court of Appeal (BCCA) in Vancouver Area Network of Drug Users v. Downtown Vancouver Business Improvement Association, 2018 BCCA 132, (PDF) confirmed that such a link is required, and addressed the type of evidence needed to establish such link. This case is of importance to employers as it limits possible human rights complaints to those with strong fact-based evidence, rather than simply statistical correlation evidence.

By way of background, the Downtown Vancouver Business Improvement Association (DVBIA) had set up a program of Downtown Ambassadors to approach people who were loitering or sleeping in front of businesses, in alcoves of buildings and in a city park to press them to move along. The complainants (a representative complaint of the Vancouver Area Network of Drug Users (VANDU) asserted that the homeless population in the downtown core was disproportionately represented by aboriginal persons and persons with disabilities. As such, VANDU argued that the Downtown Ambassador program was discriminatory.

The initial decision of the BC Human Rights Tribunal (the Tribunal) found that there were significant numbers of protected classes in the group represented by VANDU. The Tribunal also found that they experienced adverse treatment with regard to a service, facility or accommodation customarily available to the public- i.e. access to sidewalks and city parks. However, the Tribunal also found that the evidence called by VANDU, largely statistical and opinion evidence from one expert, did not establish a link between the membership in a protected group and the adverse treatment experienced. Therefore, the complaint alleging discrimination on the basis of race, ancestry, colour and physical and mental disability was dismissed.

The appeal of VANDU to the BC Supreme Court (BCSC) was successful. That court found that the Tribunal erred in looking for a "connection or link". Rather, the BCSC considered that the Tribunal should have simply considered whether membership in a protected group was a "factor" in the adverse treatment. The BCSC found that the Tribunal erred by requiring the complainants to provide "something more", beyond the statistical and expert evidence it presented.

For employers...