Triple Hearsay Not Reliable Enough in Alberta Human Rights

Khumbah v Community Living Alternative Services Ltd., 2022 AHRC 91 (K. Oviatt) is a new Alberta Human Rights decision where a complaint was dismissed due to lack of any evidence of several things required to establish discrimination.

This case should serve as a reminder that, while the Alberta Human Rights Tribunal (and most other boards and tribunals) has a more relaxed threshold of evidence than a civil court, complainants still need to establish their discrimination claim with more than assertions and assumptions.

Facts

Below are the pertinent facts found by K. Oviatt of the Alberta Human Rights Tribunal:

• The complainant worked as a caregiver, providing care to complex clients with developmental and mental health disabilities
• Sometimes the clients were violent to themselves and others, and the complainant and others had been personally injured by these clients on occasion
• The employer prioritized safety but was not always successful in achieving it
• In late 2017 and/or early 2018, the employer made changes to its supervision, which included terminating the employment of the complainant’s supervisor. The complainant and others liked that supervisor, but did not like the new supervisor, a white woman
• The complainant’s employment was terminated without cause following several incidents of concern to the employer
• The complainant and several witnesses believed that the new supervisor had a plan to replace the black workers with white workers. The complainant also believed that the new supervisor instructed complex clients to physically attack black workers.  The complainant testified that he heard about these things from clients to whom the new supervisor allegedly confessed this to, or from other workers who heard it from clients who allegedly heard it from the new supervisor

Analysis / Conclusion

The Alberta Human Rights Tribunal started out by noting that it is often difficult to prove discrimination because discriminators do not generally broadcast that they are discriminating and sometimes do not even know they are being discriminatory.  Discrimination is also often subtle, and not overt.  The Tribunal explained that evidence of discrimination is often circumstantial, and not direct evidence.

The Tribunal explained some general rules regarding evidence of discrimination:

1. Intent to discriminate is not required. It is the effect we are concerned about;
2. Direct evidence of discrimination is not required;
3. The complainant’s race or color just needs to be a factor in the treatment in order for the treatment to be discriminatory, it need not be the sole factor;
4. The Alberta Human Rights Act should be given a broad and purposive interpretation;
5. BUT, there is still a burden of proof. Some reliable evidence of discrimination is still required.

The AHRT rejected the complainant’s evidence that his new supervisor had a scheme to replace the black workers with white workers, noting that the evidence was just too weak:

[21]      These comments were hearsay, and sometimes double or triple hearsay. Hearsay here means that the witness did not directly hear the new supervisor make the statements. Instead, a third party (a complex client) reported to the witness that they heard the new supervisor make the statement, or the witness testified that a fourth party (another worker) said the third party (client) told them that they heard the supervisor make the statement. In either case, the witness did not hear the new supervisor make the statements directly. The Tribunal often gives hearsay evidence little weight because it is unreliable. These hearsay statements were particularly unreliable. The main client source of this conspiracy was a highly complex individual with both developmental disabilities and severe mental health concerns who had a history of making false allegations against workers. Other client sources were similarly unreliable.

[…]

[23]      I accept the new supervisor’s evidence that she never told clients that she wanted to replace Black workers with white workers and that she never instructed clients to physically attack Black workers. Hers was the only non-hearsay evidence on this allegation, and I accept it as fact.

The AHRT went on to provide some guidance as to what would have been required for the complainant to have established his claim:

[37]      For the complainant to establish the allegation that Black workers faced higher discipline and termination than white workers, he needs to show “evidence of patterns and trends. These may come from a variety of sources, including “attitudes, specific instances, and statistical patterns. Here, the complainant brought several witnesses who repeated his conjecture and speculation that racism must be present, but did not provide sufficient evidence of patterns or disproportionate discipline. The two examples of discipline or termination against Black workers, as against Ayilara and Uweh, were rebutted through cross-examination and the respondent’s evidence that showed bona fide reasons for the discipline or termination.

In the result, the claim was dismissed.

My Take

I need to be crystal clear that I am not suggesting there was or was not any discriminatory intent on the part of the employer.  People often feel discriminated against and in some cases discrimination is occurring but it is difficult to prove.  This causes a great deal of frustration and feelings of helplessness on the part of marginalized people.

However, the outcome of this case is not surprising at all to me.  Many boards and tribunals have somewhat relaxed evidence rules.  Hearsay is a great example of something that is often allowed to some extent in front of a board or tribunal, where it would not be allowed – or would be given very little weight – in a civil court.  However, the adjudicator still needs to be persuaded that something alleged in fact occurred.  They do this with reference to the same principles used by courts – such as the rules against hearsay – but they are usually less rigid about it.

Where the hearsay relates to something a complex individual in a care program has said, it will likely give an adjudicator pause in assessing its reliability.   When it relates to something a colleague told the complainant, about something a complex individual in a care program told the colleague, about something a third party told the complex individual (say that ten times fast!), that evidence is clearly not reliable in any forum, including human rights.

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