What is the test for establishing prohibited ground in human rights analysis?

Alberta, Canada


The following excerpt is from Ahmad v CF Chemicals Ltd., 2019 AHRC 5 (CanLII):

Counsel referred to Kowtook v. Carillion Canada Inc.:[5] The first step in human rights analysis is for the complainant to establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made and, which if the allegations are believed, would be complete and sufficient to justify a finding in the complainant’s favour. . . . The question of whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were. In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. … If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext.

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