A prima facie case has been described by the Canadian court as “one which covers the allegations made, and which if believed, is complete and sufficient for a decision in favour of the complainant in the absence of an answer from the respondent.” Thus, as in the United Kingdom, the defendant’s explanation is ignored at this initial stage.
The case of McDonnell Douglas, which has been cited in both U.S. and Canadian jurisprudence, sets out an example of facts that would be sufficient to establish a prima facie case. It is sufficient for the plaintiff to prove:
(i) that he belongs to a racial minority;
(ii) that he applied and was qualified for a job for which the employer was seeking applicants;
(iii) that, despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.
The plaintiff is not required, at this stage, to prove that the respondent’s actions were motivated by race, but only to “carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion...”.Thus, in the example above, the plaintiff need not bring direct proof of discrimination, but must “demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanations, to create an inference that the decision was a discriminatory one.”
Stage 2: The Legitimate Explanation
In both the United States and Canada, once the plaintiff has established the prima facie case of discrimination, the onus falls on the defendant to provide a reasonable explanation for why the allegedly discriminatory conduct occurred. The burden, which shifts to the defendant at this stage is, however, only an evidentiary burden. The ultimate burden of persuasion remains at all times with the plaintiff. Thus, the defendant need only ‘articulate a legitimate explanation’ for the act, rather than prove, on the balance of probabilities, that there was no discriminatory motive. This contrasts to the approach in both the Race Relations Act 1976 (UK) and the E.U. Directive, where the risk of non-persuasion shifts to the defendant once the plaintiff’s prima facie case is made out.
Stage 3: Proving that Race is the Real Motivation
This third stage is often described as placing an onus on the plaintiff to rebut the legitimate explanation offered by the defendant. Strictly speaking, however, proving that the defendant’s explanation is false is neither necessary nor sufficient to establish a claim of racial discrimination.
Under both American and Canadian law, an act is...