Currie v. Bear River First Nation

Currie v. Bear River First Nation
Collection
Canadian Human Rights Tribunal
Date
2024-05-14
Neutral citation
2024 CHRT 82
File number(s)
HR-DP-2806-22, HR-DP-2953-23
Decision-maker(s)
Fagan, Catherine
Decision type
Decision
Grounds
Disability
Family Status
Race
Summary:
The Complainant, Matthew Currie, is a member of the Bear River First Nation and is of both Mi’kmaq and African-Canadian descent.
The Respondent, Bear River First Nation, issued a Protection of Property Notice (PPN) under Nova Scotia law. This PPN bans Mr. Currie from entering, or attending activities in, the Band Office, Cultural Centre, Education Centre and Gas Bar in Bear River First Nation. Mr. Currie complained that, in this process of issuing and enforcing the PPN, Bear River First Nation discriminated against him on the basis of his race. He also says that Bear River First Nation retaliated against him for having filed a complaint with the Canadian Human Rights Commission when it delayed and denied his request for social assistance, failed to protect him from the violent actions of his neighbour and excluded him from a community moose hunt.
Bear River First Nation says that, based on a series of interactions where Bear River First Nation staff reported that Mr. Currie was rude, angry, inappropriate, intimidating and mean towards band employees and a councillor, it was necessary to issue the PPN and keep it in force to protect staff and maintain a safe work environment.
The Tribunal concluded from the evidence that Mr. Currie, while rude and angry at times, was never violent or threatening and never presented a threat to the safety of staff or other community members. It found that unconscious bias and racial stereotypes came into play when Mr. Currie expressed his frustration, and it came across as threatening and dangerous, even if Mr. Currie made no threats or acts of violence and had no history of such acts. This led the Tribunal to infer that discrimination was a factor in Bear River First Nation’s treatment of Mr. Currie.
The Tribunal found the complaint substantiated in part. It concluded that Bear River First Nation discriminated against Mr. Currie based on his race when it issued an unnecessarily broad PPN preventing him from entering and attending activities in most public buildings in the community. The Tribunal also concluded that Bear River First Nation retaliated against Mr. Currie for filing his complaint when it failed to protect him and his family from the violent actions of their neighbour and when it excluded Mr. Currie from a community moose hunt.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT 82
Date:
May 14, 2024
File Nos. :
HR-DP-2806-22 & HR-DP-2953-23
Between:
Matthew Currie
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Bear River First Nation
Respondent
Decision
Member:
Catherine Fagan
I. OVERVIEW 1
II. DECISION 2
III. ISSUES 3
IV. RELEVANT FACTS 3
A. Facts leading to the issuance of the PPN 3
October 29, 2018 4
November 8, 2018 5
Prior incidents 7
B. Facts surrounding the administration of the PPN on April 8, 2020 9
C. Facts related to the retaliation allegations 11
V. ANALYSIS 11
A. Did Bear River First Nation discriminate against Mr. Currie on the basis of race in the provision of services within the meaning of s. 5 of the CHRA? 12
Legal test for discrimination 12
There is a prohibited ground of discrimination under the CHRA 13
Bear River First Nation denied Mr. Currie services and differentiated adversely against him in the provision of services customarily available to the general public 14
There were services provided, and the services were customarily available to the general public 14
Denial of services 15
Adverse differentiation in the provision of services 16
Mr. Currie experienced adverse differentiation in how Bear River First Nation provided services on April 8, 2020 18
Mr. Currie’s race was a factor in the adverse differentiation or denial of services or access to services caused by Bear River First Nation’s imposition of the PPN 18
Mr. Currie’s race was a factor in the adverse differentiation caused by Bear River First Nation’s administration of the PPN on April 8, 2020 24
Finding on prima facie case 25
Bona fide justification 25
B. Did Bear River First Nation retaliate against Mr. Currie for filing a complaint with the Canadian Human Rights Commission? 26
Response to requests for social assistance 27
Mr. Currie did not experience any adverse treatment in relation to the requests for social assistance 27
Response of Bear River First Nation to violent actions of Mr. Currie’s neighbour 28
Mr. Currie experienced adverse treatment in relation to Bear River First Nation’s response to violent actions of his neighbour 28
Mr. Currie’s human rights complaint was a factor in the adverse treatment 29
Exclusion of Mr. Currie from the community moose hunt 30
Mr. Currie experienced adverse treatment in relation to the community moose hunt 30
Mr. Currie’s human rights complaint was a factor in his exclusion from the community moose hunt 31
VI. REMEDIES 32
A. Cease Discrimination 32
B. Access to Public Buildings 33
C. Monetary losses in relation to the prohibition to attend the Gas Bar 33
D. Lost wages 34
E. Pain and suffering 35
F. Wilful and Reckless Conduct 37
G. Public Interest Remedies 40
VII. ORDER 40
I. OVERVIEW [1] Matthew Currie, the Complainant in this case, is a black Bear River First Nation member. He is of both Mi’kmaq and African-Canadian descent. He was self-represented during the entirety of his human rights complaint process. Bear River First Nation, the Respondent, is a band pursuant to the Indian Act, RSC, 1985, c. I-5 located in Bear River, Nova Scotia. In this case, Mr. Currie alleges he was adversely impacted when Bear River First Nation discriminated against him based on his race.
[2] The case primarily revolves around Bear River First Nation’s issuance of a Protection of Property Notice (PPN) under the Nova Scotia Protection of Property Act, RSNS 1989, c. 363 (the “Protection of Property Act”) in November 2018. This PPN, which is still in force as of the writing of this decision, prohibits Mr. Currie from entering or attending activities in the Band Office, Cultural Centre, Education Centre and the Gas Bar in Bear River First Nation. Mr. Currie alleges that Bear River First Nation’s decision to issue the PPN was related to the fact that he is black. Mr. Currie also alleges that the way that Bear River First Nation administered the PPN is discriminatory based on his race, particularly in relation to an event that happened on April 8, 2020. Finally, Mr. Currie alleges that Bear River First Nation retaliated against him for having filed a complaint with the Canadian Human Rights Commission (the “Commission”) when Bear River First Nation delayed and denied his request for social assistance, failed to protect Mr. Currie from the violent actions of his neighbour and excluded Mr. Currie from the September 2020 community moose hunt.
[3] Bear River First Nation denies all allegations. It claims that its decision to issue the PPN against Mr. Currie was necessary to protect staff and maintain a safe work environment. It argues that, despite the PPN, Mr. Currie can still receive Bear River First Nation services and programs in a modified manner.
II. DECISION [4] Mr. Currie’s complaint is substantiated in part.
[5] Mr. Currie has established a prima facie case that Bear River First Nation discriminated against him based on race when it issued an unnecessarily broad PPN preventing Mr. Currie from entering and attending activities in most public buildings in the community. Bear River First Nation also discriminated against Mr. Currie based on race in the way it administered the PPN on April 8, 2020.
[6] Mr. Currie has also established a prima facie case that Bear River First Nation retaliated against him for filing his complaint. This retaliation resides in the way in which the First Nation failed to take measures to protect Mr. Currie and his family from the violent actions of their neighbour and in its exclusion of Mr. Currie from the September 2020 community moose hunt.
[7] Bear River First Nation did not provide a legitimate justification, known as a bona fide justification, for the discriminatory and retaliatory conduct. Therefore, these claims are substantiated.
[8] There was insufficient evidence to establish a prima facie case of retaliation by Bear River First Nation in delaying and denying Mr. Currie’s request for social assistance; therefore, this claim was unsuccessful.
[9] In terms of remedies, the Tribunal orders Bear River First Nation to remove any obstacles to Mr. Currie entering and attending activities in the Band Office, the Cultural Centre, the Education Centre and the Gas Bar. The Tribunal also orders Bear River First Nation to pay amounts as compensation for Mr. Currie’s pain and suffering and for Bear River First Nation’s reckless misconduct. Finally, the Tribunal orders Bear River First Nation to work with the Commission to develop a policy to support the issuing of PPNs and similar orders in a non-discriminatory way.
III. ISSUES [10] The Tribunal must determine the following issues:
1. Did Bear River First Nation discriminate against Mr. Currie on the basis of race in the provision of services within the meaning of s. 5 of the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA):
a) when Bear River First Nation made the decision to issue a PPN under the Protection of Property Act; and
b) in the administration of the PPN?
2. Did Bear River First Nation retaliate against Mr. Currie within the meaning of s. 14.1 of the CHRA for having filed a complaint with the Commission when:
a) Bear River First Nation allegedly delayed and denied Mr. Currie’s request for social assistance;
b) Bear River First Nation allegedly failed to protect Mr. Currie from the violent actions of his neighbour; and
c) Bear River First Nation allegedly decided to exclude Mr. Currie from the September 2020 community moose hunt.
3. If this Tribunal makes a finding of discrimination, what remedies should be ordered under s. 53 of the CHRA?
[11] Below, I analyze the above questions. In doing so, I only discuss the evidence that parties presented at the hearing that is relevant to determine the issues.
IV. RELEVANT FACTS A. Facts leading to the issuance of the PPN [12] On November 15, 2018, Bear River First Nation issued a PPN to Mr. Currie via a letter sent to him. The Bear River First Nation issued this PNN under the Protection of Property Act, which allows occupiers of property in Nova Scotia to issue notices to prohibit named individuals from entering certain premises or engaging in specific activities in those premises. Under this PPN, Mr. Currie is no longer allowed to enter and attend activities in the Band Office, the Cultural Centre, the Education Centre and the Gas Bar until further notice. The November 15, 2018, letter followed a resolution from Chief and Council approving the PPN. A few days later, Mr. Currie sent an email to appeal the decision, but his appeal was denied.
[13] According to the November 15, 2018 letter, the Council issued the PPN because of two recent events: an October 29, 2018, incident at Canadian Tire with a band employee and an incident on November 18, 2018, at the Gas Bar with a Councillor. At the hearing, witnesses for both parties had very different versions of what happened on those two dates. Below, I outline what I consider most likely occurred during those incidents.
October 29, 2018 [14] On October 29, 2018, Mr. Currie and his partner, Ms. Kristie Carter, went to Canadian Tire with a band employee, Ms. Kait Harlow, to benefit from a service whereby Bear River First Nation purchases winter clothing for families in the community. According to the testimony of Mr. Currie and Ms. Carter, the interaction was simple: they met Ms. Harlow, purchased the winter clothing and then left. Both Mr. Currie and Ms. Carter testified that Mr. Currie was neither angry nor threatening during the interaction with Ms. Harlow. Ms. Harlow did not testify. There was, however, an unsigned handwritten note supposedly from Ms. Harlow that was provided at the hearing. The note states that there was a discussion between Ms. Harlow and Mr. Currie about the reimbursement process for the coats, during which Mr. Currie asked to use her credit card. According to the note, Ms. Harlow told Mr. Currie that it was her personal credit card, so he couldn’t use it. The note also states that Ms. Carter asked Mr. Currie to wait in the car and apologized for his behaviour. Ms. Carter denied that she had asked Mr. Currie to leave the store, both during her testimony and in an email she had sent to the Council shortly after Bear River First Nation issued the PPN. The note does not state that Mr. Currie said or did anything that Ms. Harlow found intimidating or threatening, and she did not testify to explain her statement further.
[15] Given that Ms. Harlow made the effort to write the note, I find it likely that there were tense discussions between her and Mr. Currie about the reimbursement process for the clothing. However, nothing in the evidence, including the note and Ms. Carter’s testimony, leads me to conclude that Mr. Currie said or did anything to threaten or bully Ms. Harlow or that she felt threatened or unsafe during the interaction.
November 8, 2018 [16] On November 8, 2018, Mr. Currie was at the Gas Bar with some family members when Councillor Carol Ann Potter arrived. Mr. Currie and Councillor Potter testified that Mr. Currie approached the Councillor to ask her when the Council would approve a grant intended for his son to travel to receive a sports award. According to Mr. Currie, the deadline to confirm attendance at the award ceremony was fast approaching. Councillor Potter replied that it would be approved when it was approved, without providing any timeline. In the silent surveillance footage shown at the hearing, this initial interaction was perhaps 3-4 seconds. Councillor Potter moved on quickly and entered the store. When she came out a couple of minutes later, Mr. Currie was still there and approached her again to try and obtain a timeline for the Council’s decision. As seen in the video, the two spoke for around 20 seconds. Mr. Currie and Councillor Potter agree that this discussion was again about when Mr. Currie might expect the Council’s approval for the travel grant for Mr. Currie’s son. Mr. Currie acknowledged that he was frustrated that Councillor Potter would not provide any assurance that the Council would make a decision in time for his son to attend the award ceremony, but he denied that he was angry or threatening. Councillor Potter testified, however, that Mr. Currie was angry and pointed at her in a threatening manner. After reviewing the video footage, I find Mr. Currie’s version of events more persuasive. In the video of the event, Mr. Currie does not appear to be pointing at Councillor Potter, and his posture does not appear aggressive or angry. One hand was in his pocket, and the other hand was making everyday talking gestures. In fact, Mr. Currie’s demeanour in the video seems relaxed.
[17] Councillor Potter also testified that, as she climbed into her car, Mr. Currie referred to a rumour regarding Councillor Potter partaking in certain criminal activities. According to Councillor Potter, Mr. Currie said that he would go to the Royal Canadian Mounted Police (RCMP) about the rumours. Mr. Currie denies he made this statement. Councillor Potter states that these comments devastated her. In response, she immediately called a lawyer for Bear River First Nation, who advised her to call the RCMP to make a statement and to get a copy of the security footage of the interaction. Bear River First Nation did not provide the Tribunal with a copy of the statement Councillor Potter would have made to the RCMP. Nonetheless, I find that it is more likely than not that Mr. Currie commented on the rumour that Councillor Potter had engaged in criminal activity. However, based on the video of the interaction between Councillor Potter and Mr. Currie, in which Mr. Potter seems relaxed and non-threatening, I am not persuaded by Councillor Potter’s testimony that Mr. Currie threatened to go to the RCMP.
[18] Councillor Potter testified that, since then, the Council has imposed various limitations on the types of interactions she can have with specific segments of the community for both their safety and hers. Although the evidence presented at the hearing was unclear, it seems there may have been wider rumours in the community of her criminal activity, and the rumour did not originate with Mr. Currie. The limitations that the Council imposed on Councillor Potter’s interactions support this finding.
[19] The interaction between Mr. Currie and Councillor Potter was clearly tense, with heightened emotion on both sides. Mr. Currie likely mentioned the rumours of alleged criminal activity out of frustration. He was afraid his son would be unable to travel for the “once-in-a-lifetime opportunity,” and Councillor Potter refused to provide a timeline for the Council’s decision. Mr. Currie’s allegation was serious, and, understandably, Councillor Potter was upset and angry with Mr. Currie for bringing it up. Still, Mr. Currie was not bullying or violent with Councillor Potter. He was not threatening to do something illegal or violent. Mr. Currie did nothing during this interaction to justify a view by Councillor Potter that her safety was jeopardized in Mr. Currie’s presence nor to justify the Council’s conclusion that Bear River First Nation staff were not safe around him and that he could not safely be in any public buildings.
Prior incidents [20] According to the November 15, 2018, letter, the two incidents discussed above led to the issuance of the PPN. However, Bear River First Nation’s witnesses also testified to two other incidents.
[21] The Band Administrator, Kerry Payson, testified to an incident on September 28, 2016, when Mr. Currie was allegedly rude and aggressive during a phone conversation with her and a band employee, Ms. Amber Hiltz. Mr. Currie admitted that he was upset during this call, which was about cutting off social assistance payments. Mr. Currie also noted that the Council was threatening to evict his family from their home because of overcrowding during this time. The call began between Mr. Currie and Ms. Hiltz. Ms. Hiltz did not testify, but Bear River First Nation provided a hand-written note she had supposedly written following the phone call. In the note, Ms. Hiltz wrote about her frustration in her dealings with Mr. Currie and his family and that he comes in “to cause trouble” and he “twists her words”. However, without the ability for Ms. Hiltz to be cross-examined on this interaction, I give limited weight to this hand-written note.
[22] According to Ms. Payson and Councillor Potter, who was in the next room at the time of the phone call, the conversation between Mr. Curie and Ms. Hiltz was getting heated, so Ms. Payson took over the call. Ms. Payson testified that Mr. Currie called her malicious during the call. He also said that he would speak to the media about the services he was receiving and that he was recording the conversation. These comments upset Ms. Payson. Mr. Currie testified that he had started recording certain conversations with band employees around this time to ensure there was a clear record of how they were treating him. Ms. Payson admitted to hanging up on Mr. Currie because of the nature of the interaction. Following this event, Ms. Payson told staff to make written notes of difficult interactions with community members.
[23] Given that this event was two years before Bear River First Nation’s decision to issue the PPN, I find it unlikely that this event played a significant role in its decision to issue the PPN, although Councillor Potter and Ms. Payson testified that the event formed part of their opinion of Mr. Currie as aggressive. Mr. Currie was frustrated during this call, which, he admits, caused him to be rude to and angry with staff. However, I find that he did not say anything that would reasonably lead Ms. Hiltz, Ms. Payson or the Council to conclude that their physical safety was threatened in Mr. Currie’s presence.
[24] There was also testimony of an incident on August 30, 2018 when Mr. Currie came to the Band Office to fill out forms. The incident allegedly involved the receptionist at the time, although the receptionist, who was a summer student, did not testify nor was there a written note from her describing the interaction. Instead, Ms. Payson testified to what she understood happened based on a conversation she had had with the receptionist. Ms. Dawn McEwan, a band employee, also testified to what she saw from her office not far from the reception area. Mr. Currie, Ms. Carter and Mr. Kerwyn Currie, their son, also testified to their version of events. Going forward, I will refer to Mr. Kerwyn Currie as Mr. Kerwyn to avoid confusion with his father.
[25] On this day, Mr. Currie, Ms. Carter and Mr. Kerwyn visited the Band Office because Mr. Kerwyn and Mr. Currie had forms to fill out. Evidence from both parties made it clear that neither Mr. Currie, Ms. Carter, nor Mr. Kerwyn spoke to the receptionist during this visit. However, while Mr. Currie was in the next room filling out forms, Ms. Carter and Mr. Kerwyn spoke about how rude it was that the receptionist did not acknowledge their arrival. Ms. Carter and Mr. Kerwyn acknowledged that this conversation may have been within earshot of the receptionist.
[26] Ms. McEwen testified that she saw Mr. Currie in the Band Office that day from her office. She confirmed that she did not see him speak to any staff person, including the receptionist. However, she thought that his posture was “intimidating”. She did not explain what this meant.
[27] Following this event, the Chief of Bear River First Nation sent a letter to Mr. Currie informing him that it was reported that he had been inappropriate, intimidating and mean with staff and that, should similar incidents happen again, he would be unable to access Band buildings.
[28] The receptionist did not testify, so she could not be questioned on the events that occurred and her reaction to them. As such, I find Mr. Currie, Ms. Carter and Mr. Kerwyn’s version of events to be more persuasive than the hearsay evidence of Ms. Payson, which I give limited weight. I find it more likely than not that Mr. Currie entered the Band Office, filled out his forms and left without ever talking to the receptionist or acting inappropriately with staff. If the receptionist was upset following the Currie family’s visit, it was likely due to the comments that Ms. Carter and Mr. Kerwyn made within earshot of her while Mr. Currie was in another room, and her reaction was unrelated to Mr. Currie’s actions.
B. Facts surrounding the administration of the PPN on April 8, 2020 [29] Mr. Currie alleges that Bear River First Nation again discriminated against him in the way that it administered the PPN. In particular, he refers to an event that happened on April 8, 2020. Bear River First Nation also referred to this event to justify the continuance of the PPN against Mr. Currie.
[30] On April 7, 2020, Mr. Currie and Ms. Payson emailed back and forth. As seen from the emails, Mr. Currie was wondering when he would receive his social assistance. Ms. Payson informed him that the Band had not received his forms, so his social assistance would be interrupted. Mr. Currie then informed Ms. Payson that he had already provided pictures of the signed forms and forwarded her the application he had submitted as well as the reply email from an employee confirming that the application was received. The next morning, however, another staff person informed Mr. Currie by email that the Band required the original forms. The email mentioned that he was told that the originals were needed two weeks prior, although this email was not put into evidence.
[31] Mr. Currie then responded to the staff person and Ms. Payson by email to say that he was coming to the Band Office to sign his forms to ensure that his social assistance would not be interrupted. Because of the PPN, Mr. Currie would normally send any forms to the Band Office through Canada Post. However, on this occasion, Mr. Currie testified that he felt rushed because the deadline was that day and that he needed to buy food for his family. It should be noted that, around this time, the RCMP informed Mr. Currie that it had no documentation that the Bear River First Nation had issued a PPN to him. Because of this, Mr. Currie testified that he understood that the PPN was neither legal nor enforceable.
[32] Given Mr. Currie’s sense of urgency and belief that the PPN was not valid, Mr. Currie decided to come to the Band Office and to let staff know he was coming beforehand to avoid surprises. In response, a staff person informed him that the PPN was still in effect, so they would leave the forms outside the front door of the Band Office with a pen. There were several resulting emails back and forth whereby Mr. Currie stated that he intended to come into the office to get his forms because he needed his social assistance cheque.
[33] It is relevant that this incident occurred during the early days of the COVID pandemic. As such, Ms. Payson testified that the offices were locked and not open to the public, regardless of whether there was a PPN in effect for the community member. However, this information was not mentioned to Mr. Currie in the emails exchanged on that day.
[34] After receiving these emails, Ms. Payson called the RCMP and informed it that Mr. Currie was coming and that the police needed to come to the Band Office as soon as possible. According to Ms. Payson’s testimony, she made it clear to the police that it was urgent.
[35] Mr. Currie arrived at the Band Office with Mr. Kerwyn, Ms. Carter and another family member. They exited the car, and Mr. Currie began filming with his phone. Mr. Currie testified that he decided to film in order for the record to be clear that he was being non-violent and that he was simply there to pick up and sign his forms, which he believed would be on the front step. The video shows Mr. Kerwyn trying two doors to the Band Office, but they are locked. It is also evident from the video that Mr. Currie, Mr. Kerwyn and the other family member did not manage to find the envelope with the forms.
[36] They returned to the car, at which point the RCMP arrived. There is no video of the interaction between Mr. Currie and the RCMP. However, Mr. Currie and Mr. Kerwyn testified that the officer opened the driver-side door where Mr. Currie was sitting and drew his gun. It seems the officer first tried to drag him from the car and then forced him to turn off the engine and stay in the car. Mr. Currie testified that, when the gun was drawn, he was terrified that he was going to die, like many other unarmed black men who have died in police shootings. Mr. Currie testified that the RCMP conducted a subsequent investigation into the officer and that there was a finding that he used excessive force and illegally detained Mr. Currie. However, Mr. Currie did not provide documents or further details on this.
[37] During this interaction, Mr. Currie’s partner also called the RCMP. Shortly thereafter, another police officer arrived who managed to de-escalate the situation. This second officer then went inside, got the forms and gave them to Mr. Currie. No staff members were outside or present for any of these events, nor did they witness them from inside the Band Office.
[38] Later that day, Bear River First Nation sent Mr. Currie a letter regarding the event, stating that, because of what happened that day, the PPN would remain in full effect until further notice.
C. Facts related to the retaliation allegations [39] A review of the facts leading to the retaliation allegations is included below, within the legal analysis of the test for retaliation.
V. ANALYSIS [40] This case concerns the application of s. 5 (discrimination in the provision of services) and s. 14.1 (retaliation) of the CHRA.
[41] Section 5 of the CHRA reads as follows:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
[42] Section 14.1 reads as follows:
14.1. It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
[43] I will examine the application of each of these provisions in turn.
A. Did Bear River First Nation discriminate against Mr. Currie on the basis of race in the provision of services within the meaning of s. 5 of the CHRA? Legal test for discrimination [44] In discrimination matters, the burden is on the complainant to present evidence that is sufficiently complete to meet the burden of proof, referred to as establishing a prima facie case of discrimination (Polhill v. Keeseekoowenin First Nation, 2019 CHRT 42 (CanLII) at para 52 [Polhill]). In other words, Mr. Currie must establish, on a balance of probabilities, a case of discrimination which covers the allegations made and, if believed, is complete and sufficient to justify a verdict in Mr. Currie’s favour in the absence of an answer from Bear River First Nation (Ontario Human Rights Commission v. Simpson-Sears, 1985 CanLII 18 (SCC) at para 28). A balance of probabilities means that the allegation is more likely than not to be true.
[45] Under s. 5 of the CHRA, Mr. Currie must prove three elements to make his prima facie case of discrimination:
a) There is a prohibited ground of discrimination;
b) Bear River First Nation denied him a service or differentiated adversely against him in the provision of a service or services customarily available to the general public; and
c) The prohibited ground of discrimination was a factor in the adverse impact or denial of the service.
[46] Abundant case law on the notion of a prima facie case of discrimination informs the application of s. 5 of the CHRA, including Moore v. British Columbia (Education), 2012 CSC 61 (CanLII) at para 33; Quebec (Commission des droits de la personne et de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), [2015] SCR 789 at paras 35-37 [Bombardier]; Polhill at para 54; Dominique (on behalf of the members of the Pekuakamiulnuatsh First Nation) v. Public Safety Canada, 2022 CHRT 4 (CanLII) at para 21 and 29 [Dominique].
[47] Bear River First Nation, in turn, may present its evidence to refute those three criteria.
[48] The prohibited ground of discrimination does not need to be the sole factor in the decision leading to the adverse impacts. Direct proof of discrimination is not necessary, nor is it necessary to demonstrate an intention to discriminate (Bombardier at paras 40 and 41).
[49] The Tribunal has repeatedly stated that discrimination is not usually open or intentional, particularly in cases of racial discrimination (e.g., Dominique at para 28 and Turner v. Canada Border Services Agency, 2020 CHRT 1 (CanLII) at para 48 [Turner]). Therefore, the Tribunal must analyze all the circumstances of the complaint to determine whether there is a subtle scent of discrimination (Turner at para 48; Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) [Basi]). Circumstantial evidence may help the Tribunal draw inferences. This would be the case “when the evidence presented in support of the allegations of discrimination makes such inferences more probable than other possible inferences or hypotheses” (Polhill at para 57 and Turner, para 48 and 54).
[50] As such, the Tribunal may conclude, on a balance of probabilities, that the evidence that Mr. Currie presented was, or was not, complete and sufficient regarding the three criteria. If the evidence is not complete and sufficient, the Tribunal dismisses the complaint.
[51] If this Tribunal concludes that the evidence that the Complainant presented is complete and sufficient, the burden then shifts to Bear River First Nation, who may attempt to justify its impugned decision or conduct by presenting a defence under s. 15 of the CHRA. Any defence is, again, analyzed on a balance of probabilities. After analyzing the elements together, the Tribunal can then determine whether discrimination occurred.
[52] It is in the context of this analysis that I will address the evidence presented at the hearing.
There is a prohibited ground of discrimination under the CHRA [53] As Mr. Currie is a black man, there is a prohibited ground of discrimination under the CHRA, namely race. Bear River First Nation did not contest this fact. Therefore, the Tribunal accepts that this criterion is met without further analysis.
Bear River First Nation denied Mr. Currie services and differentiated adversely against him in the provision of services customarily available to the general public
There were services provided, and the services were customarily available to the general public [54] To satisfy the second element required to make his prima facie case of discrimination, Mr. Currie must establish that the actions complained of were done in the provision of a service or services customarily available to the general public within the meaning of s. 5 of the CHRA (First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs), 2016 CHRT 2 at para 30 [FNCFCSC Merit Decision]).
[55] The first step is to determine what the service or services are, based on the facts before the Tribunal (Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC) at paras 55 and 68 [Gould]). “Service”, in this context, refers to a “benefit” or “assistance” being held out or offered to the public (Watkin v. Canada (Attorney General), 2008 FCA 170 at para 31). In making this determination, this Tribunal considers the particular actions that are said to have given rise to the alleged discrimination (FNCFCSC Merit Decision at paras 30 and 31). It may also consider whether the benefit or assistance is the essential nature of the activity (Canada (Canadian Human Rights Commission) v. Pankiw, 2010 FC 555 at para 42).
[56] The parties did not make any representations on whether the issuance of the PPN itself is a service or whether it was done in the provision of services. The issue was, therefore, not tested. However, based on the factual evidence presented at the hearing, I am prepared to accept that the particular actions that are said to have given rise to the alleged discrimination were done in the provision of services. More specifically, in imposing the PPN against Mr. Currie and in administering it, Bear River First Nation altered which of its services were available to Mr. Currie (e.g., access to tax-free gas or convenience store products and access to cultural and other programming) or how services were available to him (e.g., social or income assistance).
[57] The second step in relation to the provision of services under s. 5 of the CHRA requires a determination of whether the services were “customarily available to the general public”. The Tribunal must decide what constitutes the “public” being offered the services. This public need not be the entire public. Clients of a particular service could be a large or small segment of the general public (FNCFCSC Merit Decision at para 31). In this case, I find the public to whom the services at issue are being offered are the members of Bear River First Nation.
[58] This Tribunal has previously recognized that a First Nation was providing a service customarily available to the public when it administers an income assistance program (Pohill at para 112; MacNutt v. Shubenacadie Indian Band Council, D.T. 14/95, October 11, 1995).
[59] Given the above, I find that Bear River First Nation’s imposition and administration of the PPN were done in the provision of the following services within the meaning of s. 5 of the CHRA:
a) administering social/income assistance;
b) providing cultural, social and educational programming; and
c) providing local access to tax-free gas and convenience store products.
Denial of services [60] Section 5 of the CHRA prohibits a service provider from denying a service, or denying access to a service, on a prohibited ground of discrimination, such as race.
[61] Mr. Currie argues that Bear River First Nation has denied him access to multiple services, such as various cultural and community programming and access to tax-free gas and other tax-free products at the Gas Bar. Bear River First Nation refutes that it denied any services. In its November 15, 2018, letter, Bear River First Nation wrote that “the Band is not refusing to provide you any services. These services will continue and you can contact the above person for questions or information regarding your services.”
[62] Bear River First Nation acknowledges that Mr. Currie is not allowed to enter the Gas Bar premises, whether to purchase tax-free gas or any other product. It takes the position that this is not a denial of services because Mr. Currie could drive an hour to the nearest reserve to access tax-free gas. I find, however, that Bear River First Nation asking a band member to drive an hour to another community to access tax-free gas is not a modification of a service but a denial of services.
[63] Given the prohibition to attend the Band Office, the Cultural Centre and the Education Centre, Mr. Currie testified that he could not attend many community, cultural and holiday events and programming. Not being able to participate in these events and programs made Mr. Currie feel alienated from his culture and his community. This also impacted his children, who often refuse to attend events where their father is not allowed. Notably, Mr. Currie was not able to attend Mr. Kerwyn’s high school graduation located at the Band Office, which impacted Mr. Currie and Mr. Kerwyn deeply. Apart from the broad comment that it did not deny any services to Mr. Currie, Bear River First Nation provided no evidence of how Mr. Currie is able to participate in the programming or events available at the Cultural Centre or the Education Centre and did not explain why this is not a denial of services.
[64] Given the above, I find that Beat River First Nation denied Mr. Currie, through its imposition and administration of the expansive PPN, access to services as follows:
a) It denied him access to various community events and cultural programming at the Cultural Centre and Education Centre;
b) It denied him access to Mr. Kerwyn’s graduation; and
c) It denied him access to tax-free gas and other tax-free products at the community Gas Bar.
Adverse differentiation in the provision of services [65] Section 5 of the CHRA also prohibits a service provider to “differentiate adversely” in relation to a person in the provision of a service on a prohibited ground of discrimination, such as race. The Federal Court, in Royal Canadian Mounted Police v. Tahmourpour, 2009 FC 1009 at para 44, provides guidance on what it means to differentiate adversely. It describes “adverse differentiation” as a “distinction between persons or groups of persons that is harmful or hurtful to a person or a group of persons.”
[66] I find that Mr. Currie was indeed differentiated in how Bear River First Nation offer