Fondé en 1983 --Unis pour la diversité et l'égalité raciale


Montreal, August 18, 2016 — Tomee Elizabeth Sojourner, a Black Anglophone lesbian who had filed a discrimination complaint against a Commissioner of the Quebec Rental Board, has finally won her case against the Council for Administrative Justice (CJA), which, according to the Superior Court, had erred in its handling of her complaint two years ago.

In a decision rendered last week, Justice Chantal Masse of the Superior Court invalidated the decision by the CJA, which had rejected the complaint of Ms. Sojourner, and sent it back to the CJA for another and more correct assessment.

“I'm happy the Court has reprimanded the [CJA], it's a victory for Black women, LGBT people of color, and Anglophones. I can't wait to see how it will act in compliance with the Charters of rights”, said Ms. Sojourner, LLM Candidate at Osgoode Hall Law School, York University and Workplace Consultant.

“My confidence in the Quebec justice system was quite shaken when I saw that seven administrative judges on the Complaints Committee and the [CJA] had treated my complaint in such an erroneous manner and in a way contrary to the law. Actually, even in the decision of Justice Masse, the latter was silent on the aspect of intersectional identities,” she adds.

In 2013, while living in Montreal, Ms. Sojourner appeared before the Rental Board in a dispute with her landlord. During the hearing, Commissioner Luce De Palma repeatedly referred to Ms. Sojourner as “Mister Sojourner” despite Ms. Sojourner's requests and her landlord's representative correcting De Palma that she be referred to as “Madam Sojourner”. Commissioner De Palma alluded to Ms. Sojourner's short hair cut as being a reason for her confusion in calling her “Mister Sojourner”.

Following this incident, Ms. Sojourner submitted a complaint to the CJA in which she alleged that the Commissioner lacked impartiality and objectivity, and behaved in a discriminatory manner because of her race, sexual orientation, gender identity and language, which in turn violated her right to protection from discrimination as enshrined in the Canadian and Quebec Charters.

The Complaint Review Committee of the CJA, composed of seven administrative judges, that analyzed Ms. Sojourner's complaint, had judged that Commissioner De Palma did not have the intention to denigrate Ms. Sojourner and that the latter's allegations were not confirmed by the evidence brought forward. As such, the CJA rejected Ms. Sojourner's complaint.

Considering that the CJA had not properly handled her complaint by committing grave errors of law, Ms. Sojourner filed a motion for judicial review. In October 2014, Justice Guylène Beaugé of the Superior Court invalidated the CJA's decision. Commissioner De Palma then applied to the Superior Court for the revocation of Justice Beaugé's decision.

Justice Masse's judgement is a response to this motion for revocation. She revokes Justice Beaugé's decision, but revises the decision of the CJA by asking it to re-examine Ms. Sojourner's complaint.

In her decision, Justice Masse recognized that Ms. Sojourner's complaint in no way aimed to obtain “big money” and that it was brought forth as a “matter of principle.” Justice Masse considered that the CJA, by deeming the complaint irreceivable, had given no grounds regarding the language, race and sexual orientation factors, nor had it referred to the allegation of the lack of impartiality and objectivity as per s. 6 of the Code of Ethics of the Commissioners of the Régie du Logement.

According to Justice Masse, neither did the CJA specifically deal with the comment about Ms. Sojourner's hair, as alleged by the latter. As such, the CJA did not conform to the provisions in the Act Respecting Administrative Justice, which mandates that motives for the rejection of a complaint must be made explicit. According to Justice Masse, the CJA had to give its decision in a “transparent manner so as to allow for its reasoning to be understood, which is not the case here”.

According to CRARR Executive Director Fo Niemi, this is a warning that speaks volumes about the CJA's duty to treat the public's complaints fairly and in full respect of the Charters of rights.

Furthermore, Justice Masse underlines that intention is not necessarily required for a finding of discrimination but that, rather, there needs to be a discriminatory effect. She adds that in a context of an ethics complaint, “intention is not a requirement for there be a discrimination. […] Good faith cannot excuse all types of behaviours.”

This clarification is all the more important given that Commissioner De Palma uses the defense of an error in “good faith” in order to refute Ms. Sojourner's allegation of discrimination.

While CRARR is pleased with Justice Masse's decision, it has found some of Justice Masse's comments preoccupying. Justice Masse is of the opinion that a violation of dignity has to have a certain real gravity before concluding that they are indeed discriminatory and “that when alleging discrimination, the violation has to have crossed a certain threshold of gravity”.

“Verily, we consider that this 'calibration' of discrimination or infringement of rights can be harmful for victims of discrimination because it opens the door to arbitrary decisions in the designation of the threshold which determines the degree of rights violation”, says Mr. Niemi.

Moreover, Justice Masse was silent on the notion of intersectional discrimination, or discrimination based on the overlapping of several grounds such as race, gender and sexual orientation. In Mr. Niemi’s opinion, Justice Masse should have seized the opportunity to discuss intersectionality, which has been recognized by Canadian courts but is still ignored in Quebec, in order to provide better guidance to the CJA and avoid the interpretation of factors such as “the physical appearance of Ms. Sojourner, her full name (“Tomee Sojourner”)…” in para. 57, which risks reinforcing racial, gender, and sexual orientation stereotypes.

“My client is happy with the decision since, as Justice Masse has recognized, it's a matter of principle for Ms. Sojourner”, says Mr. Aymar Missakila, Ms. Sojourner's lawyer.

“We are quite confident that the CJA will make an impartial, objective decision based on contemporary legal norms regarding the right to equality”, he concludes.