What is the burden of proving against a party in a discrimination case?

A respondent faced with a prima facie case can avoid an adverse finding by calling evidence to show its actions were not discriminatory; or, by establishing a statutory defence that justifies the discrimination. Where the respondent relies on a statutory defence, the burden of proof shifts to the respondent (Peel Law Association v. Pieters, 2013 ONCA 396 at para. 67 [Pieters]). Where the respondent simply leads evidence to rebut the prima facie case, only the evidential burden shifts to the respondent (Pieters at para. 68). In that situation, the burden of proof remains on the complainant to establish the respondent’s evidence is false or a pretext, and that the true motivation behind the respondent’s actions was, in fact, discriminatory (see Pieters at para. 74; and, Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT) [Basi]).