'It's about creating equality and not every difference in treatment produces inequality'
“There's nothing wrong with having some kind of a program or workshop that is just targeted at a historically and presently underrepresented or disadvantaged group in society – the groups being [negatively] affected are ones that generally do not face discrimination in their day-to-day lives.”
So says Ryan Macklon, a lawyer at Kent Employment Law in Vancouver, after the British Columbia Court of Appeal upheld a decision by the province’s Human Rights Tribunal dismissing a discrimination complaint related to a union’s workshop that preferred applicants from certain disadvantaged groups.
“It’s fine to have a program like that, as long as you are advancing the purposes of the [Human Rights Code], which is equality and preventing and prohibiting discrimination in the workplace,” says Macklon.
Enrolment preference
The worker was a member of the Union of British Columbia Performers (UBCP), which is a trade union under the BC Labour Relations Code that represents various types of performers in the province.
In March 2019, the UBCP sent an email to its members announcing a writing workshop, but enrolment preference would be given to “Indigenous, LGBTQ+ and diverse members.”
The worker didn’t apply for the workshop, but five months later she filed a human rights complaint. The worker, who identified as a biracial heterosexual woman, alleged that the UBCP discriminated against her based on her sexual orientation and ancestry and that the union had “decided that heterosexual women deserve less support than ethnic minorities and LGBTQ members.”
The worker also argued that the UBCP was aware of the abuse women dealt with when trying to get into filmmaking and it had used discriminatory practices for years. She demanded compensation for the alleged discrimination along with a statement from the union that its conduct was discriminatory.
The UBCP applied to dismiss the complaint without a hearing, pointing out that she didn’t enroll in the writing workshop and arguing that preferential enrolment to Indigenous, LGBTQ+ and diverse members promoted the purposes of the BC Human Rights Code. The code states that organizations granting a preference to members of certain identifiable groups, such those identified by sexual orientation and gender identity or expression, didn’t contravene its provisions.
There was also evidence that there had been room in the workshop, making it possible that the worker would have been accepted had she applied.
The worker replied that she hadn’t applied because she chose not to “expose herself to contempt” and she shouldn’t have to apply, get rejected for discrimination, and allow injury to her dignity to prove discrimination.
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No adverse treatment
The BC Human Rights Tribunal found that the worker, as a “white, cisgender, heterosexual woman” – although the worker was biracial, she didn’t see herself as someone who would fall within the target groups of the workshop and others usually thought she was white – did not have code-protected characteristics and, since she wasn’t actually rejected from participating in the workshop, she didn’t experience any adverse treatment. This failed to meet both parts of the test for discrimination, the tribunal said.
The worker’s complaint had no reasonable prospect of success because the act of discrimination was only speculation, says Macklon.
“The reason [there was no discrimination] is because [the worker] did not apply to the workshop, so then she can't prove that she's been discriminated against,” he says. “She's not been rejected from it, she never even applied, so that's the threshold that the tribunal set out, and she didn't get through that in the first place.”
The tribunal also noted that there was no evidence that the worker would not have been accepted, or even not been given preference as a diverse member.
The tribunal agreed that “all women have faced historical and ongoing discrimination,” but found that not all women faced similar disadvantages and minority women had more than white, cisgender, heterosexual women.
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‘Historical and ongoing patterns of exclusion’
The tribunal found that the UBCP’s preferential enrolment for the workshop was a response to “historical and ongoing patterns of exclusion” that furthered the code’s purposes and didn’t amount to discrimination. It dismissed the complaint on the grounds that the worker would not be able to prove that she was adversely impacted because of protected characteristics under the code.
The worker applied for judicial review, but the judge found that the tribunal’s finding was consistent with established human rights principles and the complaint “had no reasonable prospect of success in establishing that a program that gives priority enrolment to historically disadvantaged groups is discriminatory.”
The worker appealed once again, this time to the BC Court of Appeal. She argued that the tribunal member – who was a member of the LGBTQ+ community – showed bias by justifying the UBCP’s preference for diverse and LGBTQ+ members with no evidence that the preference was warranted, and it failed to consider her competing rights versus those of diverse union members.
The worker also pointed out that the tribunal member misidentified her racially and by gender, which could amount to discrimination in and of itself.
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Presumption of impartiality
The appeal court noted that there is “a strong presumption of impartiality” with tribunals and to displace that presumption, there would have to be proof of a probability of bias. Impartiality doesn’t require an absence of prior conceptions or opinions, but instead requires decision-makers to “not allow their identities and life experiences to close their minds to the evidence and issues,” said the court.
The court found no evidence that suggested bias against the worker and that the tribunal member dismissed the complaint because it disagreed with the worker’s arguments relating to the code. Although the court noted that it was “unfortunate” that the tribunal member referred to the worker in terms that the worker disagreed with, it didn’t suggest bias or procedural unfairness, it said.
The presumption of impartiality is essential to trusting the system and the decision-makers charged with assessing cases, so it’s a high bar to prove bias, says Macklon. For example, just because one of the protected groups in the workshop was LGBTQ+ people doesn't mean that the decision-maker can't be someone who identifies as LGBTQ+, he says.
“Impartiality doesn’t mean that [decision-makers] don't have what we all have – prior conceptions, opinions and sensibilities that are our worldview,” says Macklon. “Impartiality simply means that the decision-maker isn't going to allow those things in their life, their knowledge and their experience, to close their mind to the evidence that's in front of them.”
“In other words, they're always going into it with an open mind and they're not going to have their minds made up before going in based on their prior conception of the way that things are or should be,” he adds. “They have to leave that at the door and just look at the things that's in front of them – the evidence and the issues in the case.”
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Purposes of the code
The appeal court also noted that it had been affirmed that not every difference in treatment produces inequality, and distinguishing between individuals based on a protected ground to help the conditions of a disadvantaged group furthered equality. In this case, it was reasonable for the tribunal to find that the UBCP’s targeting of members within code-protected groups to ameliorate historical and ongoing patterns of discrimination furthered the purposes of the code, said the court in dismissing the appeal.
The decision supports the idea that a program isn’t automatically discriminatory just because it’s aimed at specifically helping minority groups to the exclusion of others – at the end of the day, it’s about equity, says Macklon.
“What the tribunal seems to be concluding is that a program like this workshop seeks to ameliorate the disadvantages of one or more minority groups, and ameliorating their conditions does not adversely impact other groups who are excluded or violate their rights under the code,” he says. “It's about creating equality and not every difference in treatment produces inequality.”
In fact, mitigating a disadvantage and reaching equality could require accommodating differences, as the UBCP’s workshop was seeking to do, says Macklon.
“This type of program that's distinguishing between individuals on protective grounds – in this case, Indigenous, LGBTQ, and diverse individuals – to ameliorate the conditions of people who are in those groups, which are historically disadvantaged and continue to be disadvantaged today, that is not discriminatory even though the program still excludes some people from that group.”
See Miller v. The Union of British Columbia Performers, 2022 BCCA 358.
