A “MAJOR LEGAL PRECEDENT”: SUPERIOR COURT STRUCK DOWN ADMINISTRATIVE JUDICIAL COUNCIL’S DECISION ON TOMEE SOJOURNER’S COMPLAINT OF RACIAL, GENDER AND SEXUAL ORIENTATION BIAS

Montreal, November 3, 2014 --- In a decision that sets an important legal precedent in Quebec and that affects the rights of racialized, linguistic and LBGT minorities, the Superior Court has reversed a decision of the Administrative Judicial Council due to major errors of fact and of law.

The Court ordered the Council to rehear Ms. Tomee Sojourner’s complaint of judicial bias and discriminatory conduct on the part of Judge Luce De Palma, a member of the Quebec Rental Board.

The Court’s decision involves the Council’s rejection of a complaint filed by Ms. Sojourner with the provincial Administrative Judicial Council, claiming discrimination based on the intersectionality of different grounds such as race, gender, language, sexual orientation and gender identity, and violation of her right to equality and to dignity, as guaranteed by the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms.

Ms. Sojourner also raised a reasonable apprehension of bias on the part of the judge who deprived her of her right to a full and fair hearing. As well, she complained that Judge De Palma violated different sections of the Code of Ethics for Rental Board members.

In June 2013, Ms. Sojourner, a Black lesbian Management Consultant with extensive expertise in Diversity and Human Rights Legal Compliance, appeared before Judge De Palma at the Rental Board in a dispute with her landlord.

According to Ms. Sojourner’s complaint filed with the Council, Judge De Palma repeatedly referred to her as a man (by calling her “il”, “lui” et “monsieur Sojourner”), despite being reminded by Ms. Sojourner and the landlord's representative that she is a woman. At one point, when Ms. Sojourner corrected the judge by telling her that she should be addressed as “Madame Sojourner”, not “Monsieur”, Judge De Palma said, “it's probably your hair ...” and proceeded to call her “Mr. Mrs.”

In addition to these offensive remarks, Ms. Sojourner complains that Judge De Palma showed a distinctively hostile, dismissive and unprofessional attitudes towards her, compared to the way she addressed the landlord's representative. She often cut off Ms. Sojourner, made minimal eye contact with her when she spoke to her and appeared visibly annoyed by Ms. Sojourner’s explanations. She also spoke to the landlord's representative in French, leaving Ms. Sojourner completely in the dark as to what was being exchanged between the two. The hearing was suspended after barely 15 minutes.

The Council dismissed the complaint. It found that according to the audio recording, Judge De Palma did in fact repeatedly refer to Ms. Sojourner as a man, but that this was due to her not hearing Ms. Sojourner’s correction. It also found the situation to be a misunderstanding on the part of the judge and that she did not “intend to denigrate the complainant.” In addition, the Council noted the judge’s apology and use of a polite tone throughout the hearing.

In its decision, the Council made no references to Ms. Sojourner’s claim of discrimination and judicial bias based on her characteristics. Ms. Sojourner filed for judicial review of the Council’s decision, citing numerous problems of fact and of law, including a failure to apply the correct legal definitions of discrimination and intersectionality.

The Superior Court sided with her in a decision rendered on October 24th. Madam Justice Guylène Beaugé observed that it is sufficient to take note of Ms. Sojourner’s complaint to understand that it is not only about the unfortunate persistent use of a masculine pronoun that the complaint raises questions of discrimination based on the intersectionality of different grounds and that to reduce the case to a simple question of the language used is to trivialize it.

“I am very happy with this decision because it supports my claims, and it provides for formal recognition of intersectionality as a lens to use in the legal analysis of my complaint. It also demonstrates judicial recognition of gender identity, which is a ground not yet incorporated into the Quebec Charter. This decision also constitutes a historic gain for Black, LGBT and Anglophone individuals and communities seeking fair, and equitable treatment in Quebec,” said Ms. Sojourner.

After listening to the recording of the 11-minute hearing, the Court notes that Judge De Palma called Ms. Sojourner “Monsieur” six times, and “Mr, Ms” three times. “The persistence of the [judge] in this gross and offensive error, as well as her awkward attempt to correct her error by mumbling, “it must be your hair”, adds insults to injury,” wrote the Court.

In addition, Madam Justice Beaugé notes the Council’s incorrect application of the concept of discrimination by using the non-pertinent criterion of intent instead of the appropriate standard of “effect” of discrimination on the victim; a failure to incorporate principles of non-discrimination, and a failure to respect procedural fairness on the handling Ms. Sojourner’s complaint.

The Court orders the Council to hold a new hearing on Ms. Sojourner’s complaint, by paying attention to her specific claims of discrimination (including the violation of her constitutional right to equality before the law) in accordance with parameters set out by both the Canadian and Quebec Charter of Rights and Freedoms.

Ms. Sojourner’s counsel, Aymar Missakila, a lawyer associated with CRARR, also noted, “It is the first time that a Court in Quebec pronounces itself in a clear manner on the legal notion of intersectionality, or intersecting discrimination, which the Supreme Court of Canada recognized more than 15 years ago.”

“It is also important to note that this would the first time in Canada a court decision addresses discrimination case involving race and sexual orientation, as all gay rights cases to date involve white LGBT persons,” added CRARR’s Executive Director Fo Niemi.

CRARR assisted Ms. Sojourner in her complaint to the Council and her judicial review.

To read the Superior Court decision (in French only):