APPEAL COURT’S DECISION CAN HAVE MAJOR IMPACT ON RACE AND SEXUAL ORIENTATION DISCRIMINATION
Montreal, April 27, 2016 — The Court of Appeal of Quebec has granted Kofi Norsah the right to appeal a lower court ruling in his case of race and sexual orientation discrimination.
The decision, rendered by Justice Marie-France Bich two days ago, can have a significant impact on how complaints of discrimination based on race and sexual orientation, and involving the legal concept of intersectionality that is often avoided in Quebec, are handled by the Quebec Human Rights and Youth Rights Commission.
Mr. Norsah, an English-speaking gay Black man originally from Ghana, was a social work student at McGill University who wanted to be open about his sexual identity in his field placement at Saint Columba House. His supervisor discouraged him from doing so on the grounds that his Black client was “afraid of gay men.” Disagreements over the issue of sexual orientation disclosure in a social service setting eventually led to the termination of his placement in 2011.
His complaint with the Commission was at first turned down on the basis that his “sexual orientation is part of (his) private life, and (the agency) as well as any regular employer is entitled to ask their staff not the share their private life with their clients.” He had to appeal this decision for his complaint to be finally accepted.
The Commission produced an investigation report in 2014 that contains several discrepancies, such as the description of himself as being “Black” (instead of a Black and gay man), from Guinea (instead of Ghana) who “was living in Canada when he followed a personal path that resulted in the fact that he is a homosexual”. Also, the Commission’s report used, as evidence, a negative field evaluation of Mr. Norsah that was twice dismissed by the McGill School of Social Work.
The Commission eventually dismissed the case in 2014 due to “insufficient evidence” of discrimination. However, the decision itself reveals more problems. The Commission has erroneously used the concept of discrimination based on intent, when the courts have stated since the 1980s that discrimination should be assessed on the basis of its effects. It has also failed to address intersectionality, i.e. the intersection of race, sexual orientation and gender as an integral part of the victim’s identity.
More importantly, the Commission ruled on the case despite the fact that the social work profession, and the Commission itself, have no official policy on sexual orientation affirmation in the context of a professional helping relationship. A Commission mediator’s suggestion that a legal opinion be prepared to help the Commission better assess the case was ignored.
Mr. Norsah filed for judicial review of the Commission before the Superior Court on the grounds that the Commission made serious errors of fact and errors of law in its decision. However, the Court ruled in December 2015 that the judicial review should only be limited to procedural issues, such as whether he met the time limit to file his judicial review (which he did) and whether the Commission met its duty of “procedural fairness” in handling his case (which the Commission did, in the court’s opinion). “Procedural fairness”, in the Commission’s view, means that the Commission’s main role is to gather the versions of the complainant and the respondent, produce a factual report and receive comments from both parties before making a ruling as to whether discrimination exists.
Considering that the Superior Court did not correctly rule on his judicial review, M. Norsah sought leave to appeal before the Court of Appeal. In her decision, Justice Bich of the Court of Appeal found that this case raises important procedural questions in relation to the coming into force in 2016 of the new Code of Civil Procedures, and “questions of interest … as to the merits of the case.” Consequently, she has allowed his case to proceed before the Court of Appeal.
“My client is very happy that the Court of Appeal will look into the merits of the case because it can have an important impact on how the Quebec Human Rights Commission must handle all complaints of discrimination, particularly those involving intersectionality, such as race and sexual orientation as in his case ”, said Me May Chiu, Mr. Norsah’s lawyer.
“This case is, at this stage, no longer about Mr. Norsah”, added CRARR Executive Director Fo Niemi. “It speaks first to the need for the Commission to pay due attention to complaints filed by English-speaking Black and other individuals with multiple identity traits.”
“The Commission needs to base its decisions on law, facts and clear policy guidelines rather than on improvisation, especially when it comes to an issue as important as a professional’s right to affirm his sexual orientation in a social service setting, without risking sanctions,” he noted.