Human Rights Tribunal orders LSUC to produce documents in racial profiling case

The Law Society of Upper Canada must produce up to 10 documents and/or video footage to a black member of the society who alleges he was discriminated against by a security guard when he attempted to enter the LSUC building last July, the Human Rights Tribunal of Ontario has ruled.

In an interim decision in Pieters v. Law Society of Upper Canada, Michael Gottheil, executive chair of the HTRO, agreed with the appellant, Toronto lawyer Selwyn Pieters, that a variety of documentation should be produced to him by Ontario’s Law Society pertaining to his apprehension by a security guard when Pieters entered the Law Society building that day, the seizing of his membership card, and Pieters’ subsequent experience in the Law Society building.

As previously reported in Law Times, Pieters was stopped by a security guard on July 5, 2016 when he tried to enter the Law Society building with an intern to give the latter a tour. He told Law Times that he presented his LSUC membership card to the guard, although the card had expired. The guard then took the card from him and denied him access to the building until he had obtained a new one on the premises. After doing so, Pieters gave his intern the planned tour.

Pieters further alleged that he was followed and surveilled after he entered the building, and that his subsequent treatment, including his interactions with Law Society CEO Robert Lapper, was tainted with discrimination.

Although the Law Society had submitted that some of Pieters’ requests for production were overly broad, including of documents related to the Society’s own Challenges Faced by Racialized Licensees report, released in December 2016 [http://www.lsuc.on.ca/racialized-licensees/], and any prior complaints against the security guard who apprehended Pieters, the Tribunal found the Law Society’s characterizations of certain applications as “too narrow.”

“Whether the applicant is able to establish any of his allegations remains to be determined,” Gottheil wrote; “however, as the Tribunal has previously held in cases alleging racial profiling and discrimination, prior complaints may be arguably relevant.”

Gottheil ordered that the Law Society produce:

a)     The personnel file of the security guard who initially stopped him, including “any performance appraisals or assessments that relate to his interactions with the public, licensees or staff”;

b)     If possible, records of searches made of Pieters’ membership records in LSUC databases by the security guard of any other person from the day in question to the current;

c)     Any submissions made to the LSUC or documents produced in the context of the Challenges study in respect of discrimination, etc. by membership service or security staff;

d)     All reports and minutes of LSUC Convocation and committees related to discrimination against black lawyers, 2012-2017;

e)     Any policies relating to the process for seizing expired membership cards;

f)      All notes made by the security guard in question from April to July 2016 related to seizing expired membership cards;

g)     Any logs of expired membership cards seized between April and July 2016;

h)     Any complaints of racial discrimination or profiling against membership service or security staff in the previous five years;

i)      Report of any investigation made into events involving Pieters on July 5, 2016;

j)      Video surveillance footage of the applicant, or in relation to him, while he was in Convocation Hall or the Great Library on July 5, 2016.

One of Pieters’ requests for production was denied: for two forms related to another case, between LSUC and an employee. The Tribunal found Pieters had not established a relevance for requesting the material.

In emailed comments, Pieters indicated he was pleased with the interim decision.

“The orders simply reflect that in cases of personal and systemic anti-black racism the request for similar fact and other evidence in the possession of the respondents are appropriate given the obstacles inherent in proving racial discrimination,” Pieters said.

In a written statement to Legal Feeds, Law Society CEO Robert Lapper said: “The parties and the Human Rights Tribunal of Ontario are currently in the process of ensuring that all of the relevant documents and witnesses are available for consideration by the Tribunal at the hearing of Mr. Pieters’ application.”

“These issues should be resolved by the end of June and prior to the hearing,” he said. “The Law Society does not comment upon matters which are before the Courts or administrative tribunals, as in this case. That said, the Law Society does not believe that there was any conscious or unconscious bias or discrimination by any employee of the Law Society, as suggested by the applicant.”

The hearing in the case is set to begin on July 20 in Toronto, with continuation on July 21.