Q: What is the difference between a court of kangaroos and the Ontario Human Rights Tribunal?
A: Kangaroos are fast.
—Australian Aboriginal anecdote
This is personal, and I allow myself to be slightly emotional here, unlike when I write on professional matters. If my readers sense any sarcasm, satire or disrespect toward government institutions or their individual representatives, however, they probably underestimate the editorial effort that went into toning down this article.
It all started as a kneejerk reaction to the time my son wasted applying for a Java Programming course offered to high school students over the summer of 2021. My son was in grade 10 at Maple High School in Vaughan, Ontario (just northwest of Toronto) and learned about this offer in a letter from the school. While it wasn’t obvious from the letter, which pointed students to a website, the application process eventually requested that he confirm his “blackness” or…forget about it.
The Java course was part of the “SummerUp” program, offering high school students free courses ranging from computer programming to photography and filmmaking, all funded by Ontario’s Ministry of Education (in other words, by all of us colourless taxpayers). According to the website, it is meant to “connect historically excluded Black students with the skills, confidence, and opportunities they need to thrive and find personal and academic success.” This would thereby “close the ‘opportunity gap’ so often experienced by Black students.” That the program does so by means of racial discrimination against all others, and is blatantly segregationist, struck me as curious. I also felt sorry for my son – not because of the pity programming course, but because he was upset about the obvious lack of equality at work.
I called the school to ask a straight question: was my son automatically disqualified due to his non-blackness? In a phone conversation filled with verbal acrobatics, the school principal finally said, “Yes,” but refused to confirm this answer in writing. I sent an email directly to Stephen Lecce, Ontario’s Minister of Education, with copy to my federal (Liberal) MP, Francesco Sorbara, demanding a meaningful explanation, to no avail. I then launched a petition objecting to the discrimination, but that didn’t exactly catch fire either.
And so began an absurd and eye-opening odyssey through Ontario’s human rights machinery. It turns out that Canadian institutions, governments and companies are allowed to discriminate against some people provided it’s in the name of reducing or eliminating disadvantages for other groups. The Canadian Human Rights Commission calls such efforts (which in the U.S. were euphemistically dubbed “affirmative action”) “special programs.” This is why (to take just two of a disturbingly high number of examples) universities can offer STEM admissions to female students that are denied to males, or why VIA Rail can offer race-based discounts to Indigenous passengers.
SummerUp is not the most insidious example of such discrimination, but I thought it would be worth asking the Ontario Human Rights Commission (OHRC) if it was in fact sanctioned as a “special program” under Section 14 of the OHRC Code. The Commission’s response?
“Organizations do not need permission from the OHRC to develop a special program,” was the emailed reply from Paola Floro, an “Information Officer” with the Commission. “The Code allows for programs designed to help people who experience hardship, economic disadvantage, inequality or discrimination. The Code also protects these programs from attack by people who do not experience the same disadvantage [emphasis added].” The Commission said it encouraged such special programs “as effective ways to achieve substantive equality by helping reduce discrimination, or addressing historical prejudice.”
So the Government of Ontario does not insist upon prior approval of new discriminatory “special programs.” If a program is formally designated as “special,” then it is authorized to discriminate. And if a non-designated program discriminates, why then, that makes it special! This gives free reign to organizations, including school boards and ministries, to discriminate arbitrarily merely by applying the affirmative action concept. But how do they determine a particular group faces “hardship, economic disadvantage, inequality or discrimination”?
My perfunctory observation of my son’s black schoolmates didn’t reveal anybody who fit that description, at least not relative to our own family situation, income-wise. How exactly are black Ontario high school kids disadvantaged in their lifetime, in a way that qualifies them for special ameliorating accommodations? Is offering free yoga lessons or photography courses (both part of SummerUp) really going to close any educational gaps between blacks and non-blacks? How? And by what measure?
I launched a complaint to the Human Rights Tribunal of Ontario (HRTO) alleging a breach of the Human Rights Code by the Ontario Ministry of Education. Maybe they’d have an explanation for all this. Maybe this wasn’t a Pandora’s box spewing out racism. Maybe I’d learn something and become a better person.
And my effort was rewarded – but in peculiar ways. The amount of demagoguery to which I had been exposed over half of my life in the Cold War-era Soviet Union pales in light of what I got from the HRTO. The explanations and justifications I heard turned out to be illuminating, though what they revealed should be distressing to any decent person.
A full year after my submission, on July 27, 2022, I got news from the HRTO. “Your application is ready to be served,” the email said. Exciting! Maybe I’d get to meet the “honourable” Stephen Lecce in person! But there was just one problem: a special Form 4A (Litigation Guardian on Behalf of a Minor) was needed to make sure that the claimant had “standing.”
I am not a lawyer and honestly, the legal jargon and forms, especially, rub me in a very wrong way. Why would I, a father and legal guardian of my minor son, have no “standing” (whatever that means) in things that affect my boy? So, I simply replied that I was the claimant, thinking that the free Java course opportunity was already lost, and my son was more interested in fishing by then anyway. I asked the HRTO a couple of times to please confirm whether they still required the form, but got dead silence.
Finally, on August 30, the HRTO sent me a note threatening to dismiss the case for the following two reasons:
- “A review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.”
- “If the Application is filed on behalf of a minor under 18 of age (sic), a Form 4A must be completed.”
That pesky Form 4A again! I clarified that my application was not done on behalf of a minor but that I was using my son’s specific experience “as an example to highlight the racial discrimination nature of the programs.”
And how could they have missed the “narrative”? I tried again. “The act of discrimination is very clear,” I wrote. “The SummerUP program in question is explicitly offered to a particular RACE, and has been confirmed by school officials as NOT available to other RACES (while funded indiscriminately by taxpayers of all races). It cannot get any clearer and specific as far as the acts of racial discrimination are concerned. Please let me know what makes this claim dubious or ‘general’, if you think this particular objection still stands.”
A feeling of the quixotic nature of my pursuit started to creep in. Was I still challenging the Ministry of Education or was there another giant in the way?
On November 10, 2022 – lightning fast by HRTO standards – I heard from the Tribunal again. It was a brief but formal Decision that reasserted the SummerUp program’s legality and ended with an Order declaring, “The Application is dismissed.” In her decision, adjudicator Eva Nichols took issue, again, with the idea that I had a right to bring forward such a case when I had not “faced any form of discrimination on a protected ground” and because I had confirmed I was not bringing the application forward on behalf of another person, namely my son.
But it was the Decision’s Kafkaesque mental process that stood out. Nichols pointed out that “colour and race are among the protected grounds” under which discrimination is prohibited. But, she wrote, “They are not terms that are defined in the Code.”
Instead, the OHRC “offers the following definitions in its Policy and guidelines on racism and racial discrimination…The Commission has explained ‘race’ as socially constructed differences among people based on characteristics such as accent or manner of speech, name, clothing, diet, beliefs and practices, leisure preferences, places of origin and so forth…Recognizing that race is a social construct, the Commission describes people as ‘racialized person’ or ‘racialized group’ instead of the more outdated and inaccurate terms ‘racial minority,’ ‘visible minority,’ ‘person of colour’ or ‘non-White.’ There is no fixed definition of racial discrimination… [emphasis added].”
So race is a legal grounds on which discrimination is prohibited. But it has no definition – and in fact can be based on things like what we eat or what we do for fun. In other words, on racial stereotypes the use of which, in the not so distant past, would themselves have been considered outrageously racist. Nor is there a definition of racial discrimination per se. The Tribunal’s decision did, however, specify one thing racial discrimination can’t be: “ It is important to note in the Tribunal’s jurisprudence that an allegation of racial discrimination or discrimination on the grounds of colour is not one that can be or has been successfully claimed by persons who are white and non-racialized [emphasis added].”
In other words, according to the Tribunal, white people cannot be discriminated against on the basis of their whiteness. (It’s not true, however, that such a claim has never succeeded. A group of white employees in B.C. not only won their case against that province’s Human Rights Tribunal but also successfully defended their claim in court that they were unjustly fired due to their “wrong” race.)
It’s difficult to grasp which of the two major elements of the HRTO’s decision is more troubling: that blatant acts of discrimination are excused, and in fact are not even considered worthy of consideration if the person discriminated against is white, or that the OHRC is redefining race and racism as based on “social constructs” – habits and practices, like clothing and leisure preferences, that long were considered stereotypes.
Playing to the Letter of the Rules – Or Trying to
There was another chance to challenge the ruling, called Request for Reconsideration. But how would I overcome my “whiteness”? It’s like an original sin; there’s nothing one can do about it. Even if I made a claim on behalf of my son (and therefore had “standing”), my claim would still be dismissed. I’m Caucasian, after all, and so is he.
I looked back at my original application, and realized I had mishandled a crucial section: “C7. Please describe how you identify yourself in terms of your race, colour, ancestry, place of origin, citizenship, and/or ethnic origin.” “Identify yourself” – how could I have missed that? It’s not the machine they are asking about, it’s the ghost inside who’s riding the machine they need. So here goes, in order: white (race and colour), African (ancestry), Asia (origin), Canadian (citizenship), Russian (ethnicity).
And now the HRTO adjudicator, let’s call her “Skippy,” has armed me with valuable knowledge: “Race is a social construct.” If I scrap the useless anthropology and actually pay attention to what the form asked, my son and I come out as…Asian. What a relief after living 50 years under the wrong racial construct!
Consider some of the characteristics the HRTO takes into account:
- Place of origin. I was born in Asia, the Far East of Russia. So deep in Asia, it’s hardly possible to be more in Asia than I was. My parents were born in Kazakhstan. That’s totally Asia. CHECK.
- Diet. My favourite is Thai. And our family loves to go to Mandarin restaurants to celebrate most birthdays and other occasions. CHECK.
- Beliefs and practices. If I had to pick one, it would be Zen Buddhism. CHECK.
- Leisure activities. The sport I did the most is Kung Fu, and my favourite action movie star is Jackie Chan. BIG CHECK.
- The applicant, my son, on top of inheriting my traits, plays volleyball competitively (dominated by Asians in my neck of the woods), is very good at ping-pong, and has a chess.com rating of 2200. (Ding Liren of China just became a world chess champion, and of course Russians have long dominated the game.) TRIPLE CHECK.
- We drive Japanese cars and wear clothes made in China, Bangladesh and Nepal. BONUS CHECK.
On November 23, I emailed my Request for Reconsideration to the HRTO, this time with Form 4(A) attached and an apology for not having sent it the first time around. In my email, I explained why I was challenging the other two reasons my application had been dismissed:
“1. Being white and hence having no grounds for negative racial discrimination appeals .
As interesting as this statement is, in and of itself, it is, nevertheless, moot and not applicable. The claimant’s and my own socially racialized construct [re: 18] is Asian.
On that note, I am deeply offended by the groundless assumption made by Eva Nichols about my socially constructed race affiliation. I view such prejudiced judgement as a concealed propping of white supremacy in that it is driven by presumption that only a white man has a prerogative or abilities to place claims of this nature with HRTO. While I am grateful for deepening my understanding of race, I am, nevertheless, looking forward to an apology and would like to express my concerns about the racist attitudes and biases that seem to be present within the Tribunal itself.
2. Section 14 of the Code justifies ameliorating programs like SummerUp.
According to the Code, Section 14 is invoked to justify exceptions for the programs that are otherwise discriminatory and in breach of the Code. From Eva’s analysis, it is not clear if the discriminatory nature of the SummerUp set of programs was acknowledged by HRTO, which would make invocation of the Section 14 warranted ‘…This Application does not identify a breach of the Code on the alleged grounds of race and/or colour.’ . As soon as this contradiction is resolved, and we are truly in Section 14 waters without any ambiguity, we can then argue about applicability of this Section to the case.
The application of Section 14 is the primary point of dispute which I am bringing to the Tribunal. You cannot dismiss my application by assuming de facto that the conditions for Section 14 are met merely based on how the defendant with its affiliated organizations marketed the SummerUp campaign (and this is what Eva did in the analyses). This would be identical to passing a court decision in favour of the defendant without having an actual trial and by accepting the defendant’s side of the story as unquestionably true.”
On February 28, 2023 a final decision came in, which rejected my Request for Reconsideration. Adjudicator Nichols explained: “I have considered the above reasons submitted by the applicant. It is clear that he disagrees with the Decision. However, I must note that he does not cite any new facts or evidence that could be determinative of the case and that could not have been obtained any earlier [emphasis added].” The decision also insisted I had not filed the Form 4A, and noted that my son did not apply for the SummerUP program and “was, therefore, not refused the service cited.”
No new facts? No Form 4A? It looked like HRTO ignored my November 23 email, which I know they saw because they had initially replied to it.
It’s Funny – In a Communist Kind of Way
I’m now attempting to file a judicial review with a Divisional Court of the Ontario Superior Court to clear up that “November 23 email” mishap. But I need the HRTO’s consent to extend the Judicial Review Application deadline — and I’ve learned they’ll linger with no time limit to wear you out. And they will twist words to procrastinate even more, while dismissing or omitting anything inconvenient to their position.
If judicial review is not granted or fails – and I’m not holding my breath here – there are still other avenues to pursue, first an appeal to the Ontario Court of Appeal (which allows Charter-based arguments) and then, potentially, attempting an appeal before the Supreme Court of Canada. The good news is that every response from the HRTO is a fun read for someone with a sense of humour and real-life Communist regime experience. Also, there are now interested people and organizations willing to fund this escalating case if it comes to an expensive lawyer’s involvement. So, if Skippy thinks that every denial brings my energy down, she is mistaken; it’s quite the opposite.
I will do doubt need all that energy to fight back against the common front that the human rights machinery and its allies in the courts have been building up. A judicial review means essentially asking a court whether the Tribunal had the authority to do what it did and was it reasonable for it to do so. Attempting further appeals would mean challenging the constitutionality of such programs, and that would certainly seem to be an uphill battle.
As Bruce Pardy, executive director of Rights Probe and a Professor of Law at Queen’s University, recently put it in the Financial Post, “Legislatures, courts, and tribunals have rejected equal protection” under the law, allowing blatant discrimination in the name of privileging certain groups to assure what’s known as “substantive equality” – the equality of outcomes for those deemed disadvantaged. The Supreme Court of Canada has backed that interpretation as well. “Preferential measures, distinguishing between people by their colour, lineage, gender and sexuality, are becoming the order of the day,” Pardy noted.
The Missing Voices
What this process has made obvious to me is how odious this whole thing is. Self-proclaimed human rights “experts” are declaring that certain groups deserve special treatment because they are permanently helpless from trauma. They are also redefining race – and hence racism – to be based not on anthropological traits and genetics but “constructs,” essentially habits, which in another context could be thought of as clichés and stereotypes. What’s missing is the voice of those “oppressed racialized communities.” How is it not condescending toward black youth to offer them special free programs to compensate for…what exactly?
Suppose someone approached me and said, “Oh, you’re Russian, and that qualifies you for a free photography course to help you recover from generational trauma incurred by 300 years of Russians living under the Mongol Horde.” I am not sure what my reaction would be, but it might leave that person with real trauma for suggesting that my particular ethnicity somehow makes me inferior to others. But that’s just me…
The author wonders how self-proclaimed experts declaring that certain groups need special treatment because they are permanently helpless from trauma could not be considered patronizing. What effect will this have on young people? (Sources of photos: (left) Tverdokhlib/Shutterstock; (right) Shutterstock)
Do people subjected to those special programs not realize that such condescending patronage by those in power is its own form of chains? I wish we had blacks, Indians and other “racialized” people making claims to the HRTO and revolting against the humiliation they are subjected to by pity attitudes. Not that it should matter who makes the call, but sadly it somehow does…
Gleb Lisikh is a researcher and IT management professional, and a father of three children, who lives in Vaughan, Ontario and grew up in various parts of the Soviet Union.
Source of main image: Shutterstock.