GALLARDO CASE APPEAL MAY CHANGE RULE OF ACCESS TO HUMAN RIGHTS TRIBUNAL

Montreal, February 18, 2011 --- In a legal brief filed with the Quebec Court of Appeal last week, a Filipina Montrealer, with CRARR's support, has asked the Court to redefine and broaden access to the Quebec Human Rights Tribunal for all victims of discrimination whose case is partially rejected by the human rights commission.

The Facts

In 2006, Luc Gallardo, a seven year old Filipino child, was singled out by an educator at Lalande School of the Marguerite-Bourgeoys School Board in Montreal, for his cultural practice of eating with a fork and a spoon. His educator considered he was eating like a “clown”, and punished him by separating him from his friends and making him eat alone. Luc’s mother, Maria Theresa Gallardo, attempted to talk to the educator and explain the cultural eating practice. She was met with indifference, and a few days later when Luc forgot to wash his hands before eating the same educator asked him if “in [his] country, people wash their hands before they eat?”

The educator had made her son feel “ashamed of being Filipino”. Ms. Gallardo made further attempts to speak with the educator, the school principal, and even the media about the problem. The family was continually met with indifference and even disrespect by the school. The principal even stated in a local media article his support for the educator’s and further added statements that were deemed discriminatory by the family. Finally, Luc’s family decided to mandate CRARR to take the matter before the Quebec Human Rights and Youth Rights Commission as an issue of racial and ethnic discrimination.

The Quebec Human Rights and Youth Rights Commission

The Commission was established by the Quebec Charter of Human Rights and Freedoms. The Commission’s mandate is to make non-adversarial investigations into any situation which appears to be a case of discrimination and gather evidence of discrimination based on parameters defined by the law. If the Commission finds evidence of discrimination, it can refer the case to the Quebec Human Rights Tribunal. The Tribunal is a specialized human rights chamber of the Quebec Court designed to allow greater access to justice for victims of human rights violations. The Commission essentially acts as a “gatekeeper” to ensure that only valid complaints make it before the Tribunal.

In this case, the Commission decided in 2008 to only partially uphold the complaint. The Commission stated that there was not enough evidence to make a claim in regards to the first incident, where Luc had been punished for eating with a fork and spoon, or to the conduct of the principal towards Ms. Gallardo. The Commission left to the family to decide whether to take the case to the Tribunal on its own, at his own expense.

Instead, they only found that the second incident, where the educator asked if “in [his] country, people wash their hands before they eat?”, could go forward to the Tribunal. In effect, the Commission narrowed the Gallardo family’s complaint by only looking at the second incident of discrimination in isolation. Despite the Commission’s narrow interpretation of their case, the Gallardo family took the case in its entirety before the Quebec Human Rights Tribunal.

Note: in reviewing the investigation file, CRARR discovered several problems with the Commission’s investigation: while it interviewed several representatives of the School board, including the principal and the educator, it never met with Luc and his family, or the journalist who reported on the principal’s comments, as CRARR repeatedly suggested (this has been identified as a regular practice at the Commission, which often results in the dismissal of the complaint). In addition, evidence against Luc was submitted by the School board to the Commission but the latter did not forward it to CRARR for examination and comments, contrary to normal investigative procedures.

The Quebec Human Rights Tribunal

In April 2010, after two days of hearing, the Tribunal found that there had been discrimination based on ethnic or national origin. The Tribunal looked at the case as a whole, including the first incident where the child had been punished, the indifference that the mother had faced, and the general attitude of the educator and the school principal towards the family and their complaint.

It stated that it could not only look at evidence which the human rights commission upheld and ignore that which the Commission dismissed, not only because of the logical connection between these elements of proof, but also because it is within the power of the Tribunal to examine the case as a whole, especially when the Commission did not investigate some parts of the complaint.
The Tribunal saw the matter as particularly troubling, because the same school board had previously been before the Tribunal for another case of discrimination. The Gallardo family was awarded $17,000 in damages, to be paid by the Marguerite-Bourgeoys school board, the principal of Lalande School, and Luc's former educator.

The Appeal

The Marguerite Bougeoys School Board appealed the decision to the Quebec Court of Appeal, on a procedural point. It claims that because the Commission had only allowed the second incident to move forward (that the educator had asked if “in [his] country, people wash their hands before they eat”), the Tribunal only had the right to look at that incident exclusively. In awarding damages, the Tribunal had taken the whole context of the decision into account. According to the School Board, this was an error. They claim that the Tribunal did not have jurisdiction to rule on evidence that the Commission had dismissed.

In response to the School Board’s position, counsel for Ms. Gallardo, working with CRARR, argues in the legal brief that there are two major and related problems with access to justice in Quebec that have been raised by this case.

First of all, the Commission failed to fairly and thoroughly investigate this case. In the course of the Commission’s investigation, it only heard witnesses from the School Board, and never interviewed Luc, his mother, his father and the journalist. Therefore, the investigation was biased and one-sided at it failed to fully understand the discrimination Luc suffered.

Because of their inadequate investigation, the Commission unduly restricted what could go forward before the Tribunal. The Commission’s restrictive treatment of the Gallardo family’s complaint is apparently not an isolated incident.

Second, the Commission should not be allowed to “split” single complaints into two. If the Commission only allows some evidence of discrimination to go forward, the Tribunal cannot have a full understanding of a given case. Especially in discrimination cases, the whole context surrounding specific events, and the logical connection between these events, is important. The origin of the discriminatory acts, the attitudes of those involved, and anything else the Tribunal finds relevant should be taken into account. The second incident of discrimination that Luc suffered was directly related to, and flowed from, the first, and perhaps others. The whole context must be taken into account to properly assess whether there was discrimination.

Third, arguments were also submitted to the effect that the ultimate arbiter of a discrimination claim is the human rights Tribunal, not the Commission. It is within a victim’s right to access to justice, to present the complete case (despite the Commission’s dismissal of a part of the evidence) and have it reviewed thoroughly, especially when the link of incidents is such that it would be a denial of justice and civil rights protection not to have the victim’s evidence examined in full by the Tribunal.

Impact on Civil Rights Protection

If the School Board’s appeal succeeds on the procedural point, it will reinforce the overly restrictive effect that the Commission is having on human rights cases in Quebec. If the Commission is allowed to pursue biased investigations and unduly restrict which cases can be heard by the Quebec Human Rights Tribunal, through incomplete, inadequate or erroneous investigations, it significantly lessens protections for victims of discrimination and compensation for victims of human rights infringements.

This case could also change the law in Quebec. In 1997, the Court of Appeal ruled in Ménard v. Rivet that once the Commission dismissed a case entirely, victims could no longer go directly to the human rights tribunal (they can still do so before other regular courts). In this case, the Court of Appeal is seized with a case of partial dismissal of evidence, so the issue becomes whether a victim can still go to the human rights tribunal with a partial claim with partial evidence, or whether he or she can bring the entire case, with all pertinent evidence to be shown in court, and allow the tribunal to ultimately decide, on the basis of evidence presented before it.

The Gallardo case will unquestionably have an important impact on civil rights protections for everyone in Quebec and will further promote public discussion on human rights commissions’ competencies to investigate complaints of racism and access to justice for victims of discrimination in Canada.

Fundraising is being conducted in the Filipino community in Canada to help the family defray the costs.