MEDIA ADVISORY - COURT OF APPEAL HEARING ON CASE OF BLACK GAY MAN AGAINST THE QUEBEC HUMAN RIGHTS COMMISSION
Montreal, September 30, 2016 — On October 6th, the Court of Appeal of Quebec will hear oral pleadings on the groundbreaking discrimination case of Norsah v. Commission des droits de la personne et des droits de la jeunesse.
The hearing will start at 9:30 AM and end at 11:00 AM, at the Ernest Cormier Building, located at 100 Notre-Dame East (Champs-de-Mars Metro, in front of City Hall). Due to security measures, members of the public are invited to arrive at 9:00 AM.
The case involves an intersectional discrimination claim based on race and sexual orientation, and the problematic handling by the Quebec Human Rights and Youth Rights Commission of a complaint filed by a gay English-speaking immigrant man, Kofi Norsah, who was discouraged from publicly affirming his sexual identity during his social work field placement through McGill University. Civil rights lawyer May Chiu represents Mr. Norsah.
Kofi Norsah, originally from Ghana, filed a complaint in 2011 with the Commission against acommunity organisation where he did his McGill social work field internship. During his internship, Mr. Norsah’s supervisor discouraged him from publicly affirming his sexual identity to a Black female client who, according to the supervisor, was “afraid of gay men.”
At first, the Commission refused to accept his complaint, explaining that it considered sexual orientation to be a private matter and that an employer had the right to forbid an employee to discuss his private life with his clients. After Mr. Norsah contested this refusal, the Commission accepted and went on to investigate his complaint. However, it was ineffective in gathering elements of proof as well as in its understanding of the intersectionality between race and sexual orientation during the investigation process.
For instance, in its investigation report, the Commission wrote that the parties (i.e. Mr. Norsah and the community agency) agreed that he is a “Black man” (which denies his gay identity) and that he “was living in Canada when he followed a personal path that resulted in the fact that he is a homosexual. He told his relatives.” (which insinuates that his gay identity is a matter of choice).
After three years of investigation, the Commission dismissed his complaint on the grounds of insufficient evidence, denying him access to the Human Rights Tribunal. Mr. Norsah then applied to the Superior Court for judicial review of the decision.
In its final decision, it is clear that the Commission relied on the concept of intentional discrimination— despite the fact that Canadian courts have for thirty years ruled that intent is not necessary to prove discrimination. In addition, the Commission did not show an understanding of intersectionality as it has no policy on the matter.
In addition, the Commission ruled on a broader question of public interest and of special interest to LGBT people in Quebec, namely, the right to publicly affirm one’s sexual identity and orientation in the context of a professional helping relationship, with neither itself nor the social work profession having an official policy on this question.
In 2014, Mr. Norsah filed a motion for judicial review before the Superior Court to correct the errors of law and errors of fact in the Commission’s decision. Last December, the Superior Court dismissed his application; however, this court decision is also fraught with important errors of fact and errors of law, which is why he filed for leave to appeal before the Court of Appeal.
The debate before the Court of Appeal has become more than a discussion on the merits of the case (among other things, whether the Commission has erred by relying on the intent-based concept of discrimination and by not applying intersectionality). Other legal issues are also at stake, such as the determinative effect of a Joint Declaration (a case management tool), deadlines for filing a leave to appeal, and the standard of review that applies to the Commission in its capacity as an administrative agency.
The outcome of the case will have major effects on how racism and homophobia are addressed under the law, and how the Commission effectively protects victims of discrimination, particularly for LGBT people of color, in the province.
CRARR strongly encourages members of the Black, LGBT and equality-seeking communities to attend the hearing.